Brief Summary

Contempt of Court — Civil contempt — Breach of court order regarding unlawful occupation of property — Applicants sought interdict against unlawful occupation instigated by first respondent — Court found first respondent in contempt for allowing further unlawful occupation after being informed of court order — Seventh respondent, representing first respondent, failed to prevent additional unlawful structures from being erected on the property, constituting willful and mala fide non-compliance with the order.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an urgent application in the Gauteng Division of the High Court, Pretoria, concerning alleged contempt of court arising from the breach of an earlier urgent interdict. The matter came before Millar AJ, who delivered the contempt-related order on 26 April 2019, with reasons furnished on 3 May 2019 following a request for reasons by the first and seventh respondents.

The applicants were JR209 Investments (Pty) Ltd and five other entities (collectively, the applicants). The principal respondents relevant to this judgment were Homeless People Housing Cooperative Limited (the first respondent) and Samuel Mandlha Songo (the seventh respondent), who testified and was described as the chairperson of the first respondent’s board. Other respondents (including the municipality, alleged unlawful invaders, and certain state respondents) did not participate in the hearing of 26 April 2019.

Procedurally, the contempt application followed an earlier urgent application launched on 19 April 2019, in which the applicants obtained an order aimed at interdicting and preventing the alleged unlawful occupation and further invasion of portions 8, 10 and 39 of the farm Witkoppies 393, Ekurhuleni. A specific paragraph of that earlier order (paragraph 3.3) directed the first respondent to take steps to ensure compliance and to prevent further invasion and unlawful occupation. The present application was brought about a week later, on 26 April 2019, on the basis that the first respondent (and those acting through it) had breached the 19 April order.

The general subject-matter of the dispute was the enforcement of a court order relating to alleged ongoing land invasion and the erection of structures on agricultural-zoned land, and the appropriate civil contempt remedies to secure compliance, including whether contempt should be declared, whether a fine should be imposed, and whether committal relief should be entertained against the seventh respondent.

2. Material Facts

It was common cause that on 19 April 2019 the applicants obtained an urgent order (granted by Tuchten J) directed, among other things, at preventing unlawful occupation and further invasion of the relevant properties. It was also not disputed that the first respondent was represented in court when that order was granted, and that the seventh respondent was present and understood the order.

The seventh respondent testified that he went to the properties after the order was granted and conveyed the terms of the order to those present, including Mr Titus Manamela, described as an employee of the first respondent who occupied a house on portion 8 and was “in control” of that portion. Portion 8 was described as the only portion that was fenced and had a lockable gate.

It was further placed before the court that, after the seventh respondent conveyed the court order, he received a report the next day from Manamela that persons wanted to move onto portion 8 and erect structures; the seventh respondent instructed him to send them away, lock the gate, and provide proof. Manamela locked the gate and took a photograph of it.

The sheriff attended at the properties on 23 April 2019 to serve and execute the order, but was unable to do so that day; service and execution occurred on 25 April 2019.

A factual issue that was treated as significant in the contempt enquiry concerned the number of structures present on the properties on certain dates. The applicants relied on photographs showing, on their version, a progression from very few structures on 18 April 2019, to approximately 100 by the end of 19 April 2019, and approximately 200 by 25 April 2019 when the sheriff executed the order. The seventh respondent was cross-examined on these numbers, and the court recorded that he was evasive, ultimately being found to be an unimpressive witness who tailored his evidence; the court stated that it could not rely on his evidence on the disputed numbers except where corroborated by the applicants’ papers.

The court treated as material that the applicants’ photographic evidence regarding the number of structures on the relevant days was not challenged. However, the court also noted a limitation in the applicants’ case: the applicants were unable to demonstrate whether the additional structures said to have appeared between 18 April and 19 April were erected before or after the order was granted on 19 April. This uncertainty affected the court’s ability to determine precisely what structures existed at the moment the order was made and when the seventh respondent first conveyed its terms on 19 April.

What the court treated as undisputed and decisive for purposes of breach after the order was that, even assuming in the first respondent’s favour that the structures said to have been erected between 18 and 19 April were already present by the time the order was granted, there was no evidence explaining how a further approximately 100 structures appeared between 19 April and 25 April, particularly given that portion 8 was fenced and the gate could be locked. The court reasoned that if the gate was locked, additional structures could only have been erected with the knowledge of Manamela, who would have had to allow access.

The court accepted that Manamela had been informed of the order’s terms and that there was at least initial compliance on 20 April 2019, but inferred that subsequent access allowing further unlawful entry and construction occurred in contravention of the order.

Finally, in argument the applicants placed on record that they had ascertained that, subsequent to the sheriff’s execution on 25 April 2019, no further breach of the order had occurred.

3. Legal Issues

The central legal questions were whether the relevant paragraph of the 19 April 2019 order had been breached, and if so, whether the first respondent and/or the seventh respondent were in contempt of court, and what remedies were appropriate.

The dispute involved a combination of fact (whether further structures were erected after the order and how this occurred), the application of law to fact (whether the established conduct amounted to contempt and whether the requirements of contempt were met), and a value-laden procedural assessment concerning fairness (whether it would be just to determine contempt with potential committal consequences against the seventh respondent given his late joinder and lack of opportunity to file affidavits).

A further legal issue concerned the standard of proof applicable to contempt findings and remedies, particularly distinguishing between a juristic person (the first respondent) and an individual (the seventh respondent) against whom committal was sought. The court also had to consider procedural fairness principles relating to joinder and the impermissibility of making adverse findings affecting personal freedom without adequate opportunity to answer.

4. Court’s Reasoning

The court approached the matter through the framework for civil contempt described in Fakie NO v CCII Systems (Pty) Ltd and further elaborated in Matjhabeng Local Municipality v Eskom Holdings Limited and Others. It identified the requisites for contempt and the evidential burdens applicable in motion proceedings adapted for constitutional requirements.

Relying on Fakie, the court noted that an applicant must prove the requisites of contempt—existence of the order, service or notice, non-compliance, and wilfulness and mala fides—beyond reasonable doubt, and that once order, notice, and non-compliance are shown, the respondent bears an evidential burden to raise a reasonable doubt as to wilfulness and mala fides. The court then invoked Matjhabeng for the proposition that the standard of proof depends on the consequences of the remedy sought: punitive outcomes such as committal or a fine that affect freedom and security of the person require the criminal standard, whereas civil remedies without those consequences may be determined on the balance of probabilities.

Applying this distinction, the court reasoned that the first respondent, as a juristic person that cannot be committed, stood in a different position from the seventh respondent. The court stated that in respect of the first respondent, civil remedies would apply on proof on a balance of probabilities, whereas committal relief against the seventh respondent could only follow on proof beyond reasonable doubt. This distinction informed both the contempt enquiry and the procedural handling of the relief sought against the seventh respondent.

On the facts relevant to knowledge and notice, the court found there was no dispute that the order was granted, that the first respondent was represented, and that the seventh respondent personally attended court, understood the order, and conveyed its terms on 19 April. The court also accepted that the seventh respondent instructed Manamela, an employee in control of portion 8, to implement the order.

The core reasoning on breach and wilfulness turned on the unchallenged photographic evidence and the inference drawn from the physical control of portion 8. Although the court accepted that the applicants could not establish whether the first wave of additional structures (between 18 and 19 April) was erected before or after the order on 19 April, it treated as decisive the unexplained appearance of further structures between 19 and 25 April. Given the evidence that portion 8 was fenced and could be secured, and that access was controlled by Manamela, the court inferred that the post-order construction could only have occurred with his knowledge and permission. Because Manamela had been informed of the order and initially attempted compliance, the court concluded that subsequently allowing further unlawful entry and building was wilful and mala fide.

From this, the court drew the conclusion that the first respondent was in contempt of the 19 April order. The court’s reasoning linked Manamela’s conduct to the first respondent through the uncontested fact that he was the first respondent’s employee and in control of the portion where access was regulated, and through the earlier instruction and communication conveyed by the seventh respondent.

In relation to the seventh respondent, the court adopted a cautious approach grounded in procedural fairness and constitutional considerations. It emphasised that committal is a drastic remedy and that fairness requires that no adverse findings be made against a person’s interests without that person being properly joined and having an adequate opportunity to enlist counsel, gather evidence, and prepare, particularly where personal consequences such as committal may follow. The court considered that the seventh respondent was not cited in the original application and was joined on very short notice; deciding committal on the papers and his limited oral evidence could risk a “summary conviction” and injustice. At the same time, the court noted the applicants’ assertion that the seventh respondent was the “driving force” behind the breach, and his unsatisfactory evidence meant that the issue should not be finally determined without further process. For these reasons, the court postponed the relief sought against the seventh respondent sine die.

Finally, on costs, having found the applicants successful in obtaining relief against the first respondent (contempt and related enforcement orders), the court ordered costs to follow the result.

5. Outcome and Relief

The court treated the matter as urgent in terms of Rule 6(12) of the Uniform Rules of Court and condoned non-compliance with ordinary forms and time periods.

The application was postponed sine die insofar as relief was sought against the seventh respondent, meaning that the committal-related relief was not determined at that stage.

The court declared the first respondent to be in contempt of the order granted on 19 April 2019 (by Tuchten J). A fine of R100,000.00 was imposed on the first respondent, with payment suspended on condition of immediate and continued compliance with the 19 April order, and subject to further conditions linked to the establishment of townships on the properties and/or cessation of the first respondent’s ownership of any of them.

The court also granted enforcement-oriented relief directing the sheriff to attend the subject properties, establish and allocate numbers to structures erected since 19 April 2019, demolish each structure erected since that date, report to the parties and the court on the number of structures as at 19 April and details of occupants (including names and identity numbers if any), and to demolish unoccupied structures constructed prior to 19 April 2019. The parties were recorded as undertaking to cooperate with the sheriff for enforcement.

The first respondent was ordered to pay the applicants’ costs of the application to date.

Cases Cited

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

Matjhabeng Local Municipality v Eskom Holdings Limited and Others (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) (26 September 2017).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court held that the first respondent was in contempt of the court order granted on 19 April 2019, on the basis that post-order erection of additional structures occurred in circumstances indicating wilful and mala fide non-compliance, particularly given controlled access to at least portion 8 and the absence of an explanation for the further construction between 19 and 25 April.

The court held that it would be procedurally inappropriate to determine the committal-related relief against the seventh respondent at that stage, given his late joinder, the urgency-driven procedure, and the seriousness of committal consequences. The relief against him was therefore postponed sine die for later determination with further papers and/or evidence if pursued.

The court granted consequential relief in the form of a suspended fine against the first respondent, measures authorising the sheriff to identify and demolish structures erected after the order, and a costs order against the first respondent.

LEGAL PRINCIPLES

Civil contempt proceedings serve as an important mechanism to secure compliance with court orders and may be pursued by motion proceedings adapted to constitutional requirements, with protections appropriate to the nature of the remedy sought.

For contempt, the requisites include the existence of the order, service or notice (or knowledge), non-compliance, and wilfulness and mala fides. Once the existence of the order, knowledge, and non-compliance are established, the respondent bears an evidential burden to raise a reasonable doubt regarding wilfulness and mala fides; failing that, contempt may be found.

The applicable standard of proof depends on the consequences of the remedy. Where committal (or other remedies materially affecting an individual’s freedom and security of the person) is sought, proof beyond reasonable doubt is required. Where remedies do not entail deprivation of personal liberty, the court may apply the balance of probabilities, consistent with the purpose and effect of the relief.

A court should not make findings adverse to a person’s interests—particularly where committal may follow—without ensuring that the person is properly joined and afforded a fair opportunity to prepare and answer, consistent with the audi alteram partem principle and broader constitutional requirements of fair procedure.

JR209 Investments (Pty) Ltd and Others v Homeless People Housing Cooperative Limited and Others (24505/2019) [2019] ZAGPPHC 187 (26 April 2019)