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[2019] ZAMPMBHC 2
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Mnisi and Others v Barberton Mines Proprietary Ltd and Another (2495/19) [2019] ZAMPMBHC 2 (2 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION (MAIN SEAT)
CASE
NO:
2495/19
In the
matter between:
GIFT
SIBONISO
MNISI
First Applicant
LEFA
NKOSI
Second Applicant
SIYABONGA
MALANDULE
Third Applicant
and
BARBERTON
MINES PROPRIETARY
LTD
First Respondent
STATION
COMMANDER: SOUTH
AFRICAN
Second Respondent
POLICE SERVICES
JUDGMENT
Roelofse AJ:
[1] The
applicants are seeking leave to appeal my judgment and orders dated
12 July 2019 (“
the order”
). The applicants do not
specifically set out to which court they seek leave to appeal but
contend that the full court of this division
is the appropriate court
for the hearing of the appeal alternatively the Supreme Court of
Appeal.
[2] The
brief background to the matter is that the first respondent
approached the court in an urgent application on 12 July 2019
for
orders declaring that the applicants are in contempt of two orders
that was previously granted by judges in this Division (“the
previous orders”) and that the applicants be committed to
prison for 6 (six) months for their contempt.
[3] I
granted an order after hearing argument for the applicants
(respondents
a quo
) and the mine (applicant
a quo
). The
order: confirmed the applicants’ responsibility to comply with
the previous orders and set consequences if the they
fail to do so.
The consequence would be that the applicants would be arrested to be
kept at the Nelspruit Prison and dealt with
in terms of Section 50 of
the Criminal Procedure Act 51 of 1997. I also ordered personal
service of all the orders as well as the
papers upon the applicants.
[4] The
purpose of the order was to coerce the applicants to comply with the
orders for if they failed, they would be arrested and
detained. A
further purpose of the order was to give the first respondent some
form of comfort in circumstances where the respondent
was suffering
continued serious prejudice through violent mass action prima facie
being orchestrated by the applicants.
[5] The
applicants, in their notice of appeal: allege that I made a final
judgment when I ordered that the applicants comply with
the previous
orders and pursuant thereto issued warrants of arrest; the issuing of
warrants of arrest against the applicants constitutes
the detention
without trial which undermines Section 12 of the Constitution, 1996;
I failed to consider whether there was proper
service of the orders
alleged to have been breached; that the matter was not urgent; and in
addition in a further notice of appeal
alleges that I erred in
directing that the applicants be dealt in terms of Section 50 of the
Criminal Procedure in the event they
do not comply with paragraphs 1
and 2 of the order in that in converts civil contempt proceedings to
criminal contempt proceedings
alternatively creates parallel
proceedings.
[6]
There is no merit in any one of the grounds of
appeal when the judgment and order is properly considered. The
position is that the
previous orders were granted, the previous
orders stood until they were set aside and that the applicants are
bound to comply with
those orders until such time they are set aside.
This merely confirmed Section 165 of the Constitution and the Common
law.
[1]
The order is clear. Warrants of arrest were not immediately issued.
They would only have been issued upon the applicants’
disobeyance of the existing orders. The respondents were given an
opportunity to challenge the alleged contempt of the existing
orders
and also would have been given through the order an opportunity to
challenge any subsequent allegation of a breach of the
existing
orders (including my order). The use of the procedures provided for
in Section 50 of the Criminal Procedure Act after
the applicants’
possible arrest does not confuse the type of contempt proceedings for
both civil and criminal contempt are
crimes which are punishable by
law. The inclusion of Section 50 in the order merely contemplated the
proceedings for the observance
of the applicants’ rights
subsequent to their possible arrest.
[7]
Courts are fully empowered to use coercive orders
to ensure compliance with court
orders.
“
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
rule of law.”
[references omitted]
[2]
[8]
This court may only grant the applicants leave to appeal if they
establish that there is a reasonable prospect of success or
another
compelling reason why the appeal must be heard. If they do not
establish any one of those grounds, then the court has no
jurisdiction to grant leave to appeal. Let me consider the prospects
of success: Was I wrong to reaffirm that the applicants must
comply
with the existing orders?; Was I wrong to order personal service upon
the applicants of the existing orders so as to fully
inform them of
their obligations?; Was I wrong to order a gauntlet if the applicants
disobey?: Was I wrong to protect the applicants’
rights to
appear in court after their arrest as provided for in Section 50 of
the Criminal Procedure Act?; Was I wrong to give
the applicants a
chance to challenge their alleged contempt? – I think not. In
my view, there is nothing in the order that
another would change or
set aside.
[9] In
the premises I make the following order:
Application
is dismissed with costs. Such costs to be paid by the first, second
and third applicants jointly and severally, the
one paying the other
to be absolved.
Roelofse
AJ
Acting
Judge of the High Court
DATE
OF HEARING: 2 AUGUST 2019
DATE OF
JUDGMENT:
APPEARANCES
FOR THE
APPLICANTS: ADV. T NGWENYA
INTSTRUCTED
BY: DUBE ATTORNEYS
FOR THE
FIRST RESPONDENT: ADV. L SISILANA
INSTRUCTED
BY: EDWARD NATHAN SONNENBURG
[1]
Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2)
(CCT19/11)
[2015] ZACC 10
;
2015 (5) SA
600
(CC);
2015 (6) BCLR 711
(CC) (7 May 2015) at para. 28 “Contempt
of court is understood as the commission of any act or statement
that displays
disrespect for the authority of the court or its
officers acting in an official capacity. This includes acts of
contumacy in
both senses: wilful disobedience and resistance to
lawful court orders. This case deals with the latter, a failure or
refusal
to comply with an order of court. Wilful disobedience of an
order made in civil proceedings is both contemptuous and a criminal
offence. The object of contempt proceedings is to impose a penalty
that will vindicate the court’s honour, consequent upon
the
disregard of its previous order, as well as to compel performance in
accordance with the previous order.”
[2]
Pheko supra at para. 31.