Mokhutle and Others v Interim Provincial Comittee. Free State Province and Others In re Mokhutle and Others v African National Congress and Others (3535/2022) [2022] ZAFSHC 207 (15 August 2022)

85 Reportability

Civil Procedure

Brief Summary

Contempt of Court — Non-compliance with court order — Applicants sought to hold respondents in contempt for failing to comply with a court order to disband the Mangaung Region Interim Regional Committee — Court found that the respondents had knowledge of the order and had not complied with it, constituting contempt — Respondents' argument of compliance rejected as the committee was merely reinstated rather than reconstituted as required by the order — Court held that the respondents were in contempt and imposed sanctions.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application for contempt of court brought in the Free State Division of the High Court, Bloemfontein. The applicants, Ditaba Johannes Mokhutle, Betty Nozenza Cezula, and Thabiso Petrus Seliane, were members of the African National Congress (ANC) and sought to enforce compliance with an earlier court order made in related proceedings.

The respondents in the contempt proceedings were the Interim Provincial Committee (IPC), Free State Province, its co-ordinator and convenor (cited as the first to third respondents), and the Interim Regional Committee (IRC), Mangaung Region, together with its co-ordinator and convenor (cited as the fourth to sixth respondents).

The procedural history was central to the dispute. On 9 June 2022, the applicants instituted an urgent “main application” under case number 2657/2022 against the ANC and various internal party structures. That application alleged breaches of the ANC’s constitution and sought relief including that the Mangaung IRC be disbanded. When that application was due to be heard on 8 July 2022, an order was issued by agreement between the parties. Among other things, it directed that the Mangaung IRC be disbanded. It later became common cause that the fourth to sixth respondents (in the contempt matter) were not part of that settlement agreement.

Following the order of 8 July 2022, the applicants launched the present urgent proceedings under case number 3535/2022, seeking orders declaring the first to third respondents in contempt, imposing fines (and, in respect of one respondent, a term of imprisonment in the alternative), compelling compliance, and interdicting the fourth to sixth respondents from performing functions associated with the Mangaung IRC.

The general subject-matter of the dispute concerned enforcement of a consent order relating to the disbandment of an ANC interim regional leadership structure, and whether the respondents’ subsequent conduct amounted to non-compliance (and contempt), particularly in light of the applicants’ complaint that the IRC was “reinstated” rather than “reconstituted”.

2. Material Facts

It was undisputed that a court order was granted on 8 July 2022 under case number 2657/2022, and that the relevant respondents had knowledge of the order. It was also the content of that order—particularly paragraph 1—that provided the foundation for the contempt allegations. The order (made “by agreement between the parties”) required that the respondent “disband the Mangaung Region Interim Regional Committee”.

It was also not seriously disputed that, after the order, the IPC convened a meeting scheduled for 11 and 12 July 2022, and that a disbandment of the Mangaung IRC was effected on 11 July 2022. The applicants’ papers included a media statement issued by the ANC’s provincial spokesperson on 14 July 2022 indicating that the IPC resolved to disband IRCs whose mandates had lapsed and to replace them with newly appointed IRCs.

The applicants’ principal factual complaint was not that no meeting occurred, nor that the committee was not formally disbanded, but rather that the IRC was, in substance, “merely reinstated and not reconstituted”. On their version, this meant that the purported disbandment was ineffective because the same structure, with the same people in the same positions and the same numbers, was immediately restored.

The respondents’ position was that the order required only that the Mangaung IRC be disbanded, that this happened on 11 July 2022, and that the order did not prescribe criteria for the composition of any reconstituted structure. The first to third respondents relied, among other things, on a statement by the provincial co-ordinator (annexed to the applicants’ founding affidavit) recording that the IPC resolved to disband IRCs whose terms had lapsed and, in the same meeting, appointed new IRCs in five regions, including Mangaung.

A further material feature was that the interdictory relief sought against the fourth to sixth respondents (to prevent them from performing duties associated with the Mangaung IRC) was advanced on the basis that it would stop ongoing contempt by the first to third respondents. The viability of that interdict therefore depended on whether contempt (or continuing non-compliance) had been established.

3. Legal Issues

The central legal questions were whether the applicants had established the requirements for civil contempt of court in relation to the order of 8 July 2022, and, if so, whether punitive or coercive relief (fines, imprisonment, and/or compliance orders) should follow.

More specifically, the dispute turned on whether the court order had been complied with, and, if not, whether any non-compliance was wilful and mala fide. While the existence of the order and knowledge of it were common cause, the contested question concerned the application of law to fact, namely whether the respondents’ conduct amounted to non-compliance with the order and thus contempt.

An associated question arose from the applicants’ reliance on interpretive principles relating to court orders: whether, properly interpreted, the order required more than formal disbandment—namely that the IRC not be restored in substance in the manner alleged. This raised a question of interpretation applied to the proven or admitted facts, and the evidentiary standard applicable in contempt proceedings.

A further issue was whether, absent a finding of contempt by the first to third respondents, any basis existed to grant the claimed interdictory relief against the fourth to sixth respondents.

4. Court’s Reasoning

The court first addressed urgency. After hearing argument, it was satisfied that urgency had been established and accordingly enrolled the matter as urgent.

On the merits, the court applied the well-established requirements for contempt of court. It confirmed that an applicant must prove (a) the existence of a court order, (b) service or knowledge of the order by the respondent, and (c) non-compliance with the order. Once these elements are proved, a presumption arises that the non-compliance is wilful and mala fide, and the respondent then bears an evidentiary burden to show reasonable doubt. The court cited Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) for this approach.

The court accepted that the existence of the order and the respondents’ knowledge were not in dispute. The central enquiry was therefore compliance and, if necessary, wilfulness and mala fides. The applicants’ case focused on the proposition that the IRC was not truly disbanded because it was effectively restored under the guise of “reconstitution”. The applicants also relied on interpretive principles drawn from Eke v Parsons 2016 (3) SA 37 (CC), emphasising that the purpose and language of an order should be interpreted in context and in light of the background facts that led to it.

The court, however, took the view that “the long and the short” of the order of 8 July 2022 was that the Mangaung IRC had to be disbanded. Apart from the specific limitation in paragraph 2 of the order (that the reconstituted IRC should not disband ANC branches during the implementation of a roadmap leading to a provincial conference), the court found that the order contained no further directions regulating the method, criteria, procedure, or composition of any subsequent structure that might be appointed.

Against that interpretation, the court considered the factual position that it was common cause, or at least not seriously disputed, that the committee was in fact disbanded on 11 July 2022 at a meeting of the IPC. The applicants’ true complaint concerned the manner in which a new IRC was later reconstituted, and the inference they sought to draw that the disbandment was a sham because the “same members” resumed roles on the next day.

The court acknowledged that it might be a possibility that disbandment proceedings were no more than a sham, but held that it could not draw that conclusion beyond a reasonable doubt. It emphasised that the onus lay on the applicants to prove contempt to the required standard, and that the evidence did not justify a finding, on that standard, that the disbandment directive had not been complied with.

Because the court found that contempt was not established against the first to third respondents, the foundation for the interdictory relief against the fourth to sixth respondents fell away. The applicants’ case for the interdict was framed as being aimed at halting continuous contempt by the first to third respondents; once contempt was not proven, the court concluded that no case was made out to interdict the fourth to sixth respondents from performing their functions.

On costs, the court applied the principle that costs ordinarily follow the event. It found no reason to depart from that approach, but limited recoverable counsel’s costs to those associated with the employment of one counsel, notwithstanding requests to the contrary.

5. Outcome and Relief

The application was dismissed.

The court refused to grant the declaratory and punitive contempt relief sought against the first to third respondents, including the requested fines and imprisonment-related relief, and refused the compliance and interdictory relief sought (including the interdict against the fourth to sixth respondents).

The applicants were ordered to pay the respondents’ costs, with the qualification that costs in respect of counsel were limited to the costs of one counsel.

Cases Cited

Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA)

Eke v Parsons 2016 (3) SA 37 (CC)

Ramakatsa and Others v Magashule and Others 2013 (2) BCLR 202 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 19)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicants failed to prove contempt of the court order granted on 8 July 2022 because the evidence did not establish, beyond reasonable doubt, that the order’s directive to disband the Mangaung Interim Regional Committee had not been complied with. The court further held that, because contempt was not established, no basis existed for interdicting the fourth to sixth respondents from performing functions associated with the Mangaung Interim Regional Committee. The application was dismissed with costs, limited to the costs of one counsel.

LEGAL PRINCIPLES

Civil contempt requires proof of the existence of a court order, knowledge (or service) of the order on the respondent, and non-compliance with the order. Upon proof of these elements, wilfulness and mala fides are presumed, and the respondent bears an evidentiary burden to establish reasonable doubt; failing that, contempt is established.

Court orders are interpreted by considering their manifest purpose and by construing the language of the order in accordance with established interpretive principles, reading the order (and reasons where relevant) as a whole and, where appropriate, considering relevant background facts culminating in the order.

In contempt proceedings, where the allegation is that apparent compliance was a sham, the applicant must still meet the requisite standard of proof; a court will not infer contempt unless the evidence supports the conclusion to the required standard, and uncertainty or reasonable doubt will preclude a finding of contempt.

Costs generally follow the event, but a court retains a discretion as to the appropriate scale and limitation of recoverable costs, including limiting counsel’s costs to those associated with the employment of one counsel.