About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 404
|

|

Mphethi NO and Another v Mphahlele and Another (88497/2018) [2019] ZAGPPHC 404 (2 July 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISO, PRETORIA
CASE
NO.: 88497/2018
2/7/2019
In
the matter between:
ALTON
SENYANE MPHETHI NO
First Applicant
PAN
AFRICANIST CONGRESS OF AZANA NO

Second Applicant
and
LETLAPA
MPHAHLELE

First Respondent
LUTHANDO
MBHINA

Second Respondent
JUDGEMENT
SARDIWALLA
J:
[1]
This
is an urgent application in terms of the provisions of Rule 6(12)(a)
of the Uniform Rules of Court resulting from a refusal
by the
respondents to comply with a Court Order dated 13 September 2018. The
applicants seek to interdict or restrain the respondents
from
misrepresenting themselves through the media in the name of the PAC
of Azania (A) either through communication, issuing of
statements or
displaying paraphernalia with the true colours of the PAC.
Background
to the Application:
[2]
On
13 September 2018 in the Pretoria High Court under case number
4558/2015 in the matter between Alton Senyane Mpethi versus Philip

Dlamini N.O as the first respondent, Leonard Nkosi as the second
respondent and Narius Moloto N.O as the third respondent a signed

settlement agreement was made an order of Court. The relevant clauses
are
inter
alia
that:
"1.1
Upon the terms of this settlement agreement being complied with and
this agreement
being made an order of Court, the content hereof will
only dispose of the matter under case number 4558/2018 in its
entirety.
1.2
The
applicant herein, and in terms of this agreement, will .from the date
of this agreement being made an order of Court, be reinstated
as a
member of the Pan Africanist of Azania sic with effect from date of
his expulsion being 23 December 2014.
1.3
The
applicant herein, and in terms of this agreement, will from date of
this agreement assume his membership of the National Assembly
as a
representative of the PAC, which he lost as a result of his loss of
party membership, immediately upon having been made an
order of
Court.
1.4
That
the speaker of the National Assembly is hereby ordered to arrange
that the applicant be sworn in a sic member of the National
Assembly,
with immediate effect from the date of obtaining this Court Order.
"
[3]
It
is the applicant submission that in December 2018 it came to its
attention that the respondents were part of a group that issued
and
circulated to the public and the media, invitations, notice of
agendas and the PAC nomination form PAC (A) to members through
their
purported NEC spokesperson Apa Pooe. The notice stated that a meeting
was scheduled to take place on 9 December 2018 at the
Mayibuye, Arts
& Cultural Centre, Kimberly, Northern Cape. It is for this reason
that the applicant launched this urgent application.
Applicant's
Argument
[4]
The
applicant' s submission is that the respondents who purport to be
leaders of the PAC are in contempt of the court order dated
13
September 2018 and continue to cause factions and disunity within the
PAC. It also avers that there is no National Election
Committee in
existence as alleged by the respondents as the party is in fact still
in crisis and the first applicant is ruling
by presidential decree in
terms of clause 14.2 of the PAC disciplinary code which has not been
uplifted. Further that the applicant
has established a clear right in
terms of the above agreement and a letter to the second respondent by
Parliament dated 14 September
2018 which the respondents have
breached. That a failure to grant the interdict will cause further
disunity within the party allow
and will result in irreparable harm
being caused to the applicant's reputation.
First
Respondent's Argument
[5]
The
second respondent opposes this application on the basis that the
application lacks urgency and is without merit. He argues that
this
Court lacks the jurisdiction to hear the matter as it relates to the
meeting of 9 December 2018 which was held in Kimberly
and as such the
application should have been brought in the Kimberly High Court. It
also argues that the first applicant has no
relationship with the PAC
of which he is the current President. He further states that he is
not associated with the PAC of Azania
(A) and therefore cannot be
interdicted from conduct related to that entity. He also alleges that
the settlement agreement that
the first applicant relies on could not
be implemented by Parliament as the applicant was convicted of
murder. He further indicated
that the matter under case number
4558/2015 was dealt with in its entirety and since the respondents
were not parties to those
proceedings they cannot be held in contempt
of court. He confirmed that he was present at the Unity Conference
but that the conference
was held by the organization to which he
lawfully belongs and is not the same organization of the applicants.
It lastly alleges
that the first respondent was not properly served
in terms of Rule 4 and R6 (5) (a) of the Uniform Rules of Court.
Interim
Interdict
[6]
A request for an interim interdict is a court order preserving or
restoring the status
quo pending the determination of rights of the
parties. It is important to emphasize that an interim interdict does
not involve
a final determination of these rights and does not affect
their final determination. In this regard the Constitutional Court
said
the following:
[1]
"
An interim interdict is by definition 'a court order preserving or
restoring the status quo pending the final determination
of the
rights of the parties. It does not involve a final determination of
these rights and does not affect their final determination.'
The
dispute in an application for an interim interdict is therefore not
the same as that in the main application to which the interim

interdict relates. In an application for an interim interdict the
dispute is whether, applying the relevant legal requirements,
the
status quo should be preserved or restored pending the decision of
the main dispute. At common law, a court's jurisdiction
to entertain
an application for an interim interdict depends on whether it has
jurisdiction to preserve or restore the status quo."
[2]
[7]
The
requirements for the granting of an interim interdict are the
following: a
prima
facie
right,
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted,
that the balance of convenience favours the granting of an interim
relief, and that the applicant has no other satisfactory
remedy.
[3]
In
this regard Holmes JA
[4]
said the following:
"The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the Court. Where
the
right which it is sought to protect is not clear, the Court's
approach in the matter of an interim interdict was lucidly laid
down
by INNES, J.A., in Setlogelo v Setlogelo,
1914 AD 221
at p. 227. In
general the requisites are
-
(a)
a
right which, 'though prima facie established, is open to some doubt';
(b)
a
well grounded apprehension of irreparable injury;
(c)
the
absence of ordinary remedy.
In
exercising its discretion the Court weighs, inter alia, the prejudice
to the applicant, if the interdict is withheld, against
the prejudice
to the respondent if it is granted. This is sometimes called the
balance of convenience. The foregoing considerations
are not
individually decisive, but are interrelated; for example, the
stronger the applicant's prospects of success the less his
need to
rely on prejudice to himself. Conversely, the more the element of
'some doubt', the greater the need for the other factors
to favour
him. The Court considers the affidavits as a whole, and the
interrelation of the foregoing considerations, according
to the facts
and probabilities·, see Olympic Passenger Service (Pty.) Ltd.
v Ramlagan,
1957 (2) SA 382
(D) at p. 383D
-
G.
Viewed
in that light, the reference to a right which, 'though prima facie
established, is open to some doubt' is apt, flexible and
practical,
and needs no further elaboration."
[8]
Where
the right is clear
"...
the remaining questions are whether the applicant has also shown:
(a)
an
infringement of his right by the respondent; or a well-grounded
apprehension of such an infringement;
(b)
the
absence of any other satisfactory remedy;
(c)
that
the balance of convenience favours the granting of an interlocutory
interdict.
"
[5]
[9]
In
this case the applicant seeks an interdict the respondents from
convening a meeting under the auspices of the second applicant
by
preventing it from using invitations which have been circulated to
the public and the media with the logo and colours of the
PAC dated
the 30th November 2018. The question therefore is whether it has
established a
prima
facie
right.
The approach to be adopted in considering whether an applicant has
established a
prima
facie
right
has been stated to be the following:
[6]
"
The accepted test for a prima facie right in the context of an
interim interdict is to take the facts averred by the applicant,

together with such facts set out by the respondent that are not or
cannot be disputed and to consider whether, having regard to
the
inherent probabilities, the applicant should on those facts obtain
final relief at the trial. The facts set up in contradiction
by the
respondent should then be considered and, if serious doubt is thrown
upon the case of the applicant, he cannot succeed.
"
[7]
Contempt
proceedings
[10]
It is trite that compliance with court orders is an issue of
fundamental concern for a society that
seeks to base itself on the
rule of law. What is required in civil contempt matters is that
sufficient care should be taken in
the proceedings to ensure a fair
procedure as far as possible with the provisions of section 35(3) of
the Constitution - (JSO
v HWO (24384/2009)
(2014) ZAGPPHC 133
(19 February 2014)).
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) is the leading authority on contempt of court
proceedings. In this decision the Supreme Court of Appeal describes
the application
for committal for contempt by a private party as a
'peculiar amalgam'
because
'it
is a civil proceeding that invokes a criminal sanction or its
threat.' (para [8]).
The
Court continues in paragraph [9]
'The
test for when the disobedience of
a
civil
order constitutes contempt has come
to
be
stated as whether the breach was committed "deliberately and
mala
fide".
A
deliberate disregard is not enough,...'.
However,
in paragraph [41] the Court holds
'...
this development of the common law does not require the applicant
to lead evidence as to the respondent's state of mind or motive:
Once
the applicant proves the three requisites..., unless the respondent
provides evidence raising
a
reasonable doubt
as
to
whether non-compliance was wilful and
mala fide
the requisites
of contempt would have been established The sole change is that the
respondent no longer bears a legal burden to
disprove wilfulness and
mala fides
on a balance of probabilities, but, but only need
evidence that establishes a reasonable doubt.'
[11]
The
Supreme Court of Appeal summarised its findings in paragraph [42]:
a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional

scrutiny in the form of a motion court application adapted to
constitutional requirement.
b)
The
respondent in such proceedings is not an "accused person",
but is entitled to analogous protections as are appropriate
to motion
proceedings.
c)
In
particular the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and wilfulness
and
mala
fides)
beyond
reasonable doubt.
d)
But,
once the applicant has proved the order, service or notice, and non-
compliance, the respondent bears an evidential burden
in relation to
wilfulness and
mala
fides:
Should
the
respondent
fail to advance evidence that establishes a reasonable doubt
as
to
whether
non-compliance was wilful and
mala
fide,
contempt
will have been established beyond reasonable doubt.
[12]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality (No 2)
[2015]ZACC
10 in a unanimous decision delivered by Nkabinde J, the
Constitutional Court subsequently explained that:
"[30]
The term civil contempt is a form of contempt outside of the court,
and is used to refer to contempt by disobeying a
court order. Civil
contempt is
a
crime,
and if all the elements of criminal contempt are satisfied, civil
contempt can be prosecuted in criminal proceedings, which

characteristically lead to committal. Committal for civil contempt
can, however, also be ordered in civil proceedings for punitive
or
coercive reasons. Civil contempt proceedings are typically brought by
a
disgruntled
litigant aiming to compel another litigant to comply with the
previous order granted in its favour....
[31]
Coercive contempt orders call for compliance with the original order
that has been
breached as well as the terms of the subsequent
contempt order. A contemnor may avoid the imposition of
a
sentence
by complying with a coercive order. By contrast, punitive orders aim
to punish the contemnor by imposing a sentence which
is unavoidable.
At its origin the crime being denounced is the crime of disrespecting
the court, and ultimately the role of law.
[32]
The pre-constitutional dispensation dictated that in all cases, when
determining
contempt in relation to a court order requiring
a
person
or legal entity before it to do or not do something (ad
factum
praestandum),
the
following elements need to be established on a balance of
probabilities: (a) the must order exist; (b) the order must have been

duly served on, or brought
to
the
notice
of,
the
alleged contemnor; (c) there must have been non-compliance with the
order; and (d) the non-compliance must have been wilful
or mala
fide'.
[13]
The
Constitutional Court confirmed the decision by the Supreme Court of
Appeal in
Fakie
(supra)
and held in paragraph [36] that the decision creates a presumption in
favour of the Applicant-
'Therefore
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 reasonable doubt as to their existence. Should the contemnor
prove unsuccessful in discharging this evidential burden,
contempt
will be established.'
[14]
Nkabinde
J continued in paragraph
"
[37]
-
-
However,
where a court finds a recalcitrant litigant to be possessed of malice
on balance, civil contempt remedies other than committal
may still be
employed. These include any remedy that would ensure compliance such
as
declaratory
relief
a
mandamus
demanding the contemnor to behave in a particular manner, a fine and
any further order that would have the effect of coercing
compliance.
'
The
current application
[15]
It
is common cause between the parties before the Court that the first
three elements of the test for contempt have been established.
The
second respondent admits in paragraphs [30.2.1] of his answering
affidavit that the said settlement agreement states that "the

content hereof will only dispose of the matter under case number
4558/2015 in its entirety". He however denies being in
contemptuous
default in that he was not a party to that matter and
therefore cannot be bound by that order.
[16]
Since
the first three elements of the test for contempt have been
established,
ma/a
fides
and
wilfulness are presumed unless the respondents are able to lead
evidence sufficient to create reasonable doubt as to their existence.

The respondents thus need to rebut the presumption of
mala
fides
and
wilfulness.
[17]
The
meaning of the terms
ma/a
tides
and
wilfulness need to be determined. It was held in
Fakie
(supra
paragraph
[9]) that a deliberate (wilful!) disregard is not enough,
'since
the non-complier may genuinely, albeit mistakenly, believe him of
herself entitled to act in a way claimed to constitute
contempt. In
such a
case
good
faith avoids the irifraction. Even
a
refusal
to comply that is objectively unreasonable may be
bona
fide
(though
unreasonableness could evidence lack of good faith).'
[18]
In
light of the facts of this application the question would be whether
(i) the respondents indicated in their affidavit a factual
inability
to comply with the court order; (ii) and, if such a factual inability
is evident from the documents before the Court,
whether the
Respondent honestly believed that non-compliance with the court order
due to a factual inability to comply is justified.
[19]
The
applicant avers in the founding affidavit that the respondents are
mala
fide
and
in wilful contempt of the Court order. It is evident from both the
applicants and respondent' s affidavits that the PAC (A)
has been
embroiled in extended litigation for more 10 years and that the
relationship between the parties is acrimonious. The applicants
aver
that the respondents are no longer members of the PAC (A) and have
lost their membership at the National Assembly. However,
in
addressing the first question, namely, whether the second respondent
has indicated in his affidavit a factual inability to comply
with the
court order, it is imperative to take cognisance of the fact that the
Court is not called now to adjudicate a grievance
dispute between the
parties. Kirk-Cohen J stated unequivocally in
Federation
of Governing Bodies of South Africa African Schools (Gauteng) v MEC
for Education, Gauteng
2002
(1) SA 660
(T) at 6730-E-
'Contempt
of court is not an issue
inter
parties;
it
is an issue between the court and the party who has not complied with
a mandatory order of court.
'
[20]
I
am not convinced that the respondents have discharged the evidentiary
burden in creating reasonable doubt as to the wilfulness
and
mala
fides
of
their default to perform in terms of the court order. Although there
is no
onus
on
the respondents, but merely an evidentiary burden to create a
reasonable doubt as to the existence of wilfulness and
mala
fides,
the
vague and unsubstantiated statements contained in the second
respondent's answering affidavit did not succeed in rebutting the

presumption of wilfulness and
mala
fides.
The
second respondent did not once state, and neither was it offered in
oral argument from the bar, that he honestly believed that
the fact
that he was, in his view, not in contempt of the court order under
case number 4558/2015. The second respondent did not
succeed in
creating a reasonable doubt as to his non-compliance with the court
order being wilful and
mala
fide.
He
did not offer an explanation as to why if the court order dated 13
September 2018 did not in fact apply to him, why Parliament
would
address a letter specifically to him advising him of his loss of
membership to the National Assembly based on that Court
Order and
request that his parliamentary entry permits be returned. At no stage
did the second respondent even deny receipt of
the letter to which
his attention was drawn to the said Court order nor did he allege the
letter was incorrect and that he at any
point prior to the
institution of these proceedings challenged its contents. Therefore
there cannot be said to be reason or even
a possibility of the second
respondent's inability to comply with the order.
[21]
The
final question then is whether there are any alternative means
through which the court can ensure compliance with the court
order
dated 1 September 2018. I am of the view that an interdict would have
the desired result to coerce the respondents to comply
with the
relevant court order. I am satisfied that the balance of convenience
favours the applicants and that a failure to grant
the interdict
would result in irreparable harm being done to the second applicant
to which there is no alternate remedy.
[27]
Accordingly,
the following order is made:
1.
Declaring
the first and second respondents to be in contempt of a Court order
that was granted against them on 13 September 2018
by the above
honourable Court;
2.
That
the contempt of court is wilful in that the two respondents in
disobeying the Court Order acted mala fide as they had no intention

of complying or obeying it;
3.
That
the respondents and/or other person(s) acting at the two respondents
instance are interdicted and/or restrained from calling
and/or
issuing invitations to any person(s) to attend the above mentioned
PAC (A) Elective Conference or communicating and/or issuing

statements, either through the electronic or printed media, to the
public in the name of the PAC of Azania (A) and/or appearing
in such
media, wearing apparel with the true colours and acronyms of the PAC
(A), and displaying paraphernalia also with the true
colours of the
PAC;
4.
That
the respondents and/or other person(s) are interdicted from blocking
and/or obstructing any premises, buildings and/or structures
where
the second applicant's National Executive Conference is scheduled to
take place at Mayibuye Arts and Cultural Centre, Kimberly,
14-16
December 2018;
5.
Costs
are awarded as between attorney and own client scale on those
respondents that oppose the application, one paying the other
to be
absolved.
CM
SARDIWALLA
JUDGE
OF THE HIGH COURT
APPEARANCES
Date
of hearing

08 December
2018
Date
of judgment (reasons)        01 July
2019
Applicant's
Counsel

Adv.: D S Kumalo (SC)
Respondent's
Counsel
Mr . Gwe
[1]
In National Gambling Board v Premier, Kwa-Zulu Natal and Others
2002(2) SA 715 CC
[2]
At 730
-
731(49}
[3]
See: Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and
Another 1973{3}SA 685 (A) Knox D Arey Ltd v Jamison and Other
1996(4)
SA 348 (A) at 361
[4]
In Eriksen Motors {Welkom) Ltd v Protea Motors Warrenton and
Another, supra, at 691
[5]
Knox D'Arcy Ltd and Others v Jamieson and Others
1995 (2) SA 579
(W) at 592
-
593.
[6]
In Simon NO v Air Operations of Europe AB and Others 1999 (1) SA
217 (SCA).
[7]
At 228;
See
also Webster v Mitchell
1948 (1) SA 1186
(W) at 1189,
Manong
&
Associates (Pty) LTD v Minister of Public
Works and Another
2010 (2) SA 167
{SCA) at 180.