Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March 2006)

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[2006] ZASCA 52
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Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 653/2004
REPORTABLE
In the appeal between:
S A FAKIE, NO
Appellant
and
CCII SYSTEMS (PTY) LTD
Respondent
Before: Howie P, Farlam JA, Cameron JA, Heher JA and Cachalia AJA
Heard: Wednesday 15
February 2006
Judgment: Friday 31 March 2006
Contempt of court – constitutional characterisation – standard
of proof – whether applicant in civil proceedings must prove
requisites beyond reasonable doubt – Applicant failing to establish
that Auditor-General acted wilfully or mala fide in failing
to comply
with court order – ORDER IN PARA 67
Neutral citation: Fakie v CCII Systems (Pty) Ltd [2006] SCA 54
(RSA)
JUDGMENT
_______________________________________________________
CAMERON JA:
In the Pretoria High Court, De Vos J held the appellant, the
Auditor-General,
1
in contempt of an order of court. As a sanction, she imposed one
month’s imprisonment on him, suspended on condition that he
comply
fully with the order within four weeks from the date of her
judgment. This is an appeal with her leave against that order.
The dispute has its origin in a Cabinet decision in June 1997 to buy
military equipment. The purchases (the ‘strategic defence
packages’) were put out to tender: they included four corvettes.
The respondent (CCII), a supplier of military software and
computer
systems, was a (partially) unsuccessful bidder for a sub-contract in
relation to the corvettes. Following widespread
claims that the
procurement process had been irregular, the Parliamentary Standing
Committee on Public Accounts appointed the Auditor-General,
the
Public Protector and the National Director of Public Prosecutions
(the ‘joint investigating team’) to investigate allegations
of
corruption. In November 2001, a joint report was presented to the
President and accepted by Parliament.
CCII was not satisfied with the report’s findings. It asked the
Auditor-General under the Promotion of Access to Information
Act 2
of 2000 (PAIA) for documentation the joint investigators considered
during their investigation. This was refused. CCII
then instituted
proceedings in the High Court in Pretoria. On 15 November 2002,
Hartzenberg J upheld the application.
2
He granted CCII an order that required the Auditor-General to
provide it with specified records within 40 court days. The order
3
referred to these in two parts. Para 1.1 required the
Auditor-General to provide –
‘
All draft versions of the report submitted to
Parliament by the Joint Investigating Team regarding the so-called
Strategic Defence
Packages for the procurement of armaments for the
South African National Defence Force.’
The second part required the Auditor-General to furnish to CCII,
from documentation specified, (a) certain files to the disclosure
of
which he did not object under PAIA, and (b) a list of the files to
the disclosure of which he did object, setting out his grounds
of
objection. It was clear – and correctly conceded on appeal –
that when CCII instituted the present proceedings the
Auditor-General
had not complied with the order of Hartzenberg J.
It is common cause that the Auditor-General released –
the files encompassed in the second part of the order (including the
four categories of documents specified – audit files; contracts;
minutes; and working papers), though only
after CCII launched the
current application
; and
the draft reports envisaged in para 1.1 of the order, though only
after De Vos J granted leave to appeal
against her contempt
finding on 24 November 2004.
The issue before us is whether the circumstances in which the
Auditor-General complied so late with Hartzenberg J’s order
justify
De Vos J’s finding that he was in contempt, and her
consequent imposition of suspended imprisonment. That depends on
the circumstances
of the admitted default. But the proper approach
to considering those circumstances must first be determined. This
requires a
consideration of the nature of this form of contempt of
court, and – what was much argued before us – whether in these
civil
proceedings the standard of proof to be applied in determining
whether the Auditor-General was in contempt is a balance of
probabilities
or beyond reasonable doubt.
Contempt of court
It is a crime unlawfully and intentionally to disobey a court
order.
4
This type of contempt of court is part of a broader offence, which
can take many forms, but the essence of which lies in violating
the
dignity, repute or authority of the court.
5
The offence has in general terms received a constitutional ‘stamp
of approval’,
6
since the rule of law – a founding value of the Constitution –
‘requires that the dignity and authority of the courts, as
well as
their capacity to carry out their functions, should always be
maintained’.
7
The form of proceeding CCII invoked appears to have been received
into South African law from English law
8
and is a most valuable mechanism. It permits a private litigant who
has obtained a court order requiring an opponent to do or
not do
something (ad factum praestandum),
9
to approach the court again, in the event of non-compliance, for a
further order declaring the non-compliant party in contempt
of
court, and imposing a sanction. The sanction usually, though not
invariably,
10
has the object of inducing the non-complier to fulfil the terms of
the previous order.
In the hands of a private party, the application for committal for
contempt is a peculiar amalgam,
11
for it is a civil proceeding that invokes a criminal sanction or its
threat. And while the litigant seeking enforcement has a
manifest
private interest in securing compliance, the court grants
enforcement also because of the broader public interest in obedience
to its orders, since disregard sullies the authority of the courts
and detracts from the rule of law.
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
‘deliberately and mala fide’.
12
A deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him- or herself entitled
to
act in the way claimed to constitute the contempt. In such a case
good faith avoids the infraction.
13
Even a refusal to comply that is objectively unreasonable may be
bona fide (though unreasonableness could evidence lack of good
faith).
14
These requirements – that the refusal to obey should be both
wilful and mala fide, and that unreasonable non-compliance, provided
it is bona fide, does not constitute contempt – accord with the
broader definition of the crime, of which non-compliance with
civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of a court order, but by the deliberate
and
intentional violation of the court’s dignity, repute or authority
that this evinces.
15
Honest belief that non-compliance is justified or proper is
incompatible with that intent.
Before the decision of this court in
S v Beyers
,
16
it was not clear whether disobedience of a civil order could lead to
a public prosecution, since prosecutions were (and still are)
almost
unknown.
17
Beyers
– which involved the alleged violation of an
interdict granted in civil proceedings – ended the uncertainty.
The force of
the issue lay in the fact that after the alleged
violation of the interdict, and while Beyers’s appeal against its
grant was
pending, he and his opponent reached a settlement in which
the latter abandoned the interdict with retrospective effect ‘as
if
it had never been granted’. The state decided nevertheless to
press ahead, and this court held that the private abandonment did
not preclude the public prosecution. Steyn CJ emphasised that while
mere non-compliance did not necessarily constitute contempt,
sustained disregard and flouting of a court order could be
calculated to injure and diminish the authority and status of the
court.
18
He described the procedure in terms of which a litigant can in own
interest seek punishment of an opponent for contempt of court
to
enforce compliance with a court order as ‘ambivalent in nature’
(van tweeslagtige aard)
19
:
while it follows the rules of civil procedure (the ‘contempt in
procedure’ of English law), it has not forfeited its criminal
dimension. South African case law, he pointed out, repeatedly
treats the civil infraction as a crime ‘with no indication that
it
is regarded as anything other than common law contempt of court’.
This appears most clearly ‘from the fact that an ordinary
punishment is imposed if the application succeeds’ since
‘imposition of punishment without a crime being committed, would

be something repugnant to (onbestaanbaar in) our law’:
‘
Even
though enforcement of a civil obligation is the primary purpose of
the punishment, it is nevertheless not imposed merely because
the
obligation has not been observed, but on the basis of the criminal
contempt of court that is associated with it. The fact that
the
punishment is generally suspended on condition of compliance with the
order in issue, and that the punishment is thus not enforced
if the
applicant should abandon his rights under the order, does not detract
from this at all. Depending on the nature and seriousness
of the
contempt, the court would accordingly be able to suspend only a
portion of the punishment, and then the abandonment of rights
by the
applicant would not affect the unsuspended portion.’
20
These observations bear directly on the main question of principle
in the appeal, on which our approach to the facts it presents
must
depend. This is whether civil contempt can be established when
reasonable doubt exists as to any of the requisites of the
crime.
The pre-constitutional approach to proof was that once the enforcer
established that the order had been granted, and served
on or
brought to the alleged contemnor’s notice, an inference was drawn
that non-compliance was wilful and mala fide, unless
the
non-complier established the contrary.
21
The alleged contemnor bore the full legal burden of showing on
balance of probabilities that failure to comply was not wilful
and
mala fide.
22
The question is to what extent the introduction of the Constitution
supersedes this (and hence whether constitutional values might
imperil the existence of an important enforcement mechanism). Mr
Marcus for the Auditor-General made a wide-ranging attack on
the
employment of civil proceedings to establish contempt, arguing in
general terms that use of application procedure was itself
unconstitutional (although he conceded that the Auditor-General had
himself acquiesced in the use of motion proceedings, and that
their
propriety could therefore not be challenged in this case). His main
contention was that any onus short of the absence of
reasonable
doubt conflicted with the fair trial guarantees in s 35 of the
Constitution. Mr Rogers for CCII urged that there was
no reason to
deviate from the established common law approach to civil contempt
proceedings.
Counsel’s differing contentions are reflected in conflicting high
court decisions. In
Uncedo Taxi Service Association v Maninjwa,
23
Pickering J carefully evaluated the post-constitutional status of
civil enforcement of contempt remedies. He concluded that the
fact
that contempt proceedings are brought summarily by way of notice of
motion does not entail inevitable unconstitutional unfairness:
the
procedure infringes neither the alleged contemnor’s constitutional
right to be properly informed of the charge, nor to remain
silent,
while the question whether the right to adequate legal
representation is infringed depends on the facts of each case.
24
He considered it clearly unconstitutional, however, to deprive a
person of liberty on proof merely on balance of probabilities,
holding that in motion proceedings the initiator must establish the
offence beyond reasonable doubt. In
Uncedo Taxi Service
Association v Mtwa
,
25
Mbenenge AJ endorsed this. He found that once non-compliance and
service were proved, it would be in accordance with constitutional
principle to place an evidential burden on the alleged contemnor
regarding whether disobedience was deliberate and mala fide: in
the
absence of evidence raising a reasonable doubt, those elements would
be established to the requisite criminal standard. In
Victoria
Park Ratepayers Association v Greyvenouw CC
,
26
Plasket J gave enhanced voice to the constitutional considerations
underlying the reasoning in the
Uncedo
decisions, applying
the criminal onus to the matter before him.
In
Laubscher v Laubscher
,
27
De Vos J dissented from this approach. She emphasised that the
initiator desires not merely to punish a respondent, but to enforce
compliance with a court order. She considered that there was a
striking difference between a public prosecution and a civil
proceeding
for contempt, since in the former the accused has to
contend with the ‘giant machinery of the state’, whereas in
civil proceedings
the respondent faces only a similarly-resourced
applicant. Deprivation of liberty on proof merely on balance of
probabilities
was therefore a reasonable and justifiable limitation
of rights. In the present matter De Vos J followed her earlier
ruling: she
found that the Auditor-General had failed to discharge
the onus he bore to establish that his non-compliance with
Hartzenberg J’s
orders was not wilful and mala fide. In
Deyzel
v Deyzel
,
28
however, van Rooyen AJ declined to follow De Vos J, preferring the
Eastern Cape approach.
The full court of the Eastern Cape has subsequently upheld and
elaborated on the reasoning on
Uncedo
and
Victoria Park
.
In
Burchell v Burchell
,
29
Froneman J (Sandi and Dambuza JJ concurring) held that ‘civil
contempt’ remains a criminal offence under the Constitution,
and
that a respondent in such proceedings is inevitably an ‘accused
person’ under s 35 of the Bill of Rights. Froneman J pointed
out
that committal for contempt of court orders raises no conflict with
freedom of speech
30
or other fundamental rights, but that, on the contrary, compliance
with court orders is of fundamental concern to a society that
bases
itself on the rule of law. The full court thus held that while the
applicant has to prove the elements of civil contempt
beyond
reasonable doubt, the application procedure is constitutionally
competent to accommodate the altered onus. The full court
also
found that since there is a purely civil aspect to the proceedings,
a court may issue a declarator that a respondent is in
contempt of
court, established only on balance of probabilities, together with
associated civil relief (such as not suspending
the order pending
appeal, and barring the contemnor from access to civil courts until
the contempt is purged).
Constitutional characterisation of contempt of court
The proper conclusion as to what onus is applicable in contempt
proceedings cannot be deduced as a matter of simple typology from
the fact that a public prosecution is competent.
Beyers
affirmed only that civil contempt has not divested itself of a
criminal dimension: it did not hold that that its civil character
had been erased (for the procedure is ‘tweeslagtig’, and not
criminal only). This underlies the finding in
Burchell
that
civil mechanisms designed to induce compliance, short of committal
to prison, are competent even when proved only on balance
of
probabilities.
But this appreciation unavoidably raises the question why a lesser
onus should not also be appropriate in at least some committal
proceedings, as CCII urged us to find. For though civil contempt
applications generally encompass prayers for relief aimed at
both
punishment and enforcement – the relief sought and obtained in the
present case seemingly an instance – an applicant may
disavow a
punitive purpose and claim committal solely to secure compliance.
In such cases, counsel for CCII contended, only the
civil aspect of
the process is engaged, with the result that imposing a criminal
standard of proof is not only inappropriate, but
unfair to those
entitled to enforce compliance.
This would be correct if one were to deduce the standard of proof
simply from the nature of the particular proceeding. But the
question requires a broader approach. Looming over the debate about
the typology of contempt committal is the more important question
of
constitutional characterisation, which the Eastern Cape decisions
address: does the fact that imprisonment may be sought in
committal
proceedings purely for enforcement so affect the nature of the means
employed that a lesser standard of proof can be
justified?
Differently put, do constitutional values permit a person to be put
in prison to enforce compliance with a civil order
when the
requisites are established only preponderantly, and not
conclusively? In my view they do not, and the Eastern Cape
decisions
that the criminal standard of proof applies whenever
committal to prison for contempt is sought are correct.
There are two principal reasons for this conclusion. The first is
liberty: it is basic to our Constitution that a person should
not be
deprived of liberty, albeit only to constrain compliance with a
court order, if reasonable doubt exists about the essentials.
The second reason is coherence: it is practically difficult, and
may be impossible, to disentangle the reasons why orders for
committal
for contempt are sought and why they are granted: in the
end, whatever the applicant’s motive, the court commits a contempt
respondent
to jail for rule of law reasons; and this high public
purpose should be pursued only in the absence of reasonable doubt.
First consideration: liberty, guilt and incarceration
A long series of Constitutional Court (CC) decisions has established
that it is generally impermissible to find an accused guilty
of a
criminal offence in the absence of conclusive proof of its essential
elements. These decisions provide one of the leitmotifs
of our
democratic jurisprudence, and have led to the invalidation of a
number of ‘reverse onus’ provisions, which placed on
an accused
the legal burden of disproving an essential element of the offence.
31
The CC has held however that it is permissible in certain
circumstances for an accused to bear the lesser evidential burden of
having to advance evidence that raises a reasonable doubt about an
element of a crime – absent which the offence is established
beyond reasonable doubt.
32
The decisions deal with statutory presumptions and reverse onuses.
33
But they undoubtedly entail that where the state prosecutes an
alleged contemnor at common law for non-compliance with a civil
order, the requisite elements must be established beyond reasonable
doubt. In such a prosecution the contemnor is plainly an ‘accused
person’ in terms of s 35(3) of the Bill of Rights, and enjoys the
inter-related rights that s 35(3)(h) confers: to be presumed
innocent, to remain silent in the face of the charges and not to
testify during the proceedings. By developing the common law
in
conformity with the Constitution, the reverse onus the accused bore
in prosecutions such as
Beyers
must now be reduced to an
evidential burden (as Mbenenge AJ rightly envisaged in the second
Uncedo
decision). Once the prosecution has established (i)
the existence of the order, (ii) its service on the accused, and
(iii) non-compliance,
if the accused fails to furnish evidence
raising a reasonable doubt whether non-compliance was wilful and
mala fide, the offence
will be established beyond reasonable doubt:
the accused is entitled to remain silent, but does not exercise the
choice without
consequence.
34
It should be noted that developing the common law thus does not
require the prosecution to lead evidence as to the accused’s
state
of mind or motive: once the three requisites mentioned have been
proved, in the absence of evidence raising a reasonable
doubt as to
whether the accused acted wilfully and mala fide, all the requisites
of the offence will have been established. What
is changed is that
the accused no longer bears a legal burden to disprove wilfulness
and mala fides on balance of probabilities,
but to avoid conviction
need only lead evidence that establishes a reasonable doubt.
There can be no reason why these protections should not apply also
where a civil applicant seeks an alleged contemnor’s committal
to
prison
as punishment
for non-compliance. This is not because
the respondent in such an application must inevitably be regarded as
an ‘accused person’
for the purposes of s 35 of the Bill of
Rights. On the contrary, with respect to the careful reasoning in
the Eastern Cape decisions,
it does not seem correct to me to insist
that such a respondent falls or fits within s 35. Section 12 of the
Bill of Rights grants
those who are not accused of any offence the
right to freedom and security of the person, which includes the
right not only ‘not
to be detained without trial’,
35
but ‘not to be deprived of freedom arbitrarily or without just
cause’.
36
This provision affords both substantive and procedural protection,
37
and an application for committal for contempt must avoid infringing
it.
And in interpreting the ambit of the right’s procedural aspect, it
seems to me entirely appropriate to regard the position of
a
respondent in punitive committal proceedings as closely analogous to
that of an accused person; and therefore, in determining
whether the
relief can be granted without violating s 12, to afford the
respondent such substantially similar protections as are
appropriate
to motion proceedings. For these reasons, the criminal standard of
proof is appropriate also here.
I follow this path because the civil process for a contempt
committal is an oddity that is distinctive in its combination of
civil
and criminal elements, and it seems undesirable to
strait-jacket it into the protections expressly designed for a
criminal accused
under s 35.
38
Certainly, not all of the rights under that provision will be
appropriate to or could easily be grafted onto the hybrid process.

For similar reasons, the High Court of Australia has observed, in
the context of the English-derived process for contempt, that
‘to
say that [civilly-initiated] proceedings for contempt are
essentially criminal in nature is not to equate them with the trial
of a criminal charge’.
39
It would certainly be odd to regard the applicant in such
proceedings as a prosecutor, not only because of absence of office,

but because of the presence of manifest personal interest. During
argument there was debate about whether a civil court’s finding
of
contempt, with concomitant imposition of punishment, would count as
a ‘previous conviction’ for purposes of s 271 of the
Criminal
Procedure Act 51 of 1977 (which permits the prosecution in a
criminal trial to prove previous convictions in aggravation
of
sentence); or whether, if it were, it would feature in the South
African Police Services’ SAP 69 register of previous convictions,
and what mechanisms might be necessary to ensure that it was so
recorded. Neither counsel ventured firm submissions, and the debate
was inconclusive.
And indeed, these questions are not before us now, and it is not
necessary to decide them: I make only the point that they may
be
better answered not through a ‘rights-by-category’ analysis, in
which the protections afforded depend on whether the respondent
is
an ‘accused person’ under s 35; but by considering the rights in
that provision a ‘relevant background source’ that
furnishes
values instructive in interpreting the full range of constitutional
protections to which the alleged ‘civil contemnor’
sought to be
imprisoned as a punishment for disobeying a court order is
entitled.
40
Certainly, the requirement that proof should be conclusive, and not
merely preponderant, seems to me to be among them.
41
Since the applicant in punitive committal proceedings must prove
contempt beyond reasonable doubt, why should a lesser standard
be
warranted when committal is sought for coercion alone? In my view,
there can be no reason. Pickering J pointed out in
Uncedo
42
that the application of two different standards of proof, depending
on whether the initiator chooses to lay a criminal charge,
or
proceed civilly, is unwarrantable, because it introduces ‘a
certain degree of arbitrariness’. This applies the more if
the
standard of proof were to depend on the objective with which the
initiator proceeds, and would run counter to this court’s
analysis
in
Beyers
, which pointed to the ineluctably criminal
dimension of the remedy granted even in proceedings aimed at
coercion.
43
While the applicant may disavow punishment as a motive (a matter to
which I return), the means the court is asked to employ remain
the
same: the public sanction of imprisonment for disobedience of a
court order. The invocation of that sanction in my view requires
conclusive proof. No less than punitive committal, purely coercive
committal uses imprisonment, or its threat; and whenever loss
of
liberty for disobedience of an order of court is threatened it seems
to me necessary and proper that the infraction should be
proved
conclusively.
Counsel for CCII invoked cases where the Constitutional Court has
upheld statutory provisions providing for imprisonment as a process
in aid to procuring testimony by a recalcitrant witness in
non-criminal proceedings,
44
but as Froneman J pointed out in
Burchell
(para 12), these
decisions do not support the contention that committal to prison for
civil contempt for coercive reasons should
be permitted on less
stringent grounds than for the criminal offence. This case squarely
raises the question of what standard
of proof is constitutionally
appropriate in determining whether coercive committal is justified.
That question did not arise in
the CC cases, which were concerned
with other aspects of the procedural and substantive justification
of committal. The CC therefore
did not consider or decide the
question of proof.
45
And as O’Regan J pointed out in
De Lange v Smuts
, the
power to imprison for coercive and non-punitive purposes is ‘an
extraordinary one’:
‘
The
power to order summary imprisonment of a person in order to coerce
that person to comply with a legal obligation is far-reaching.
There
can be no doubt that indefinite detention for coercive purposes may
involve a significant inroad upon personal liberty. Clearly
it will
constitute a breach of s 12 of the Constitution unless both the
coercive purposes are valid and the procedures followed are
fair. In
this case there seems no doubt that the purpose is a legitimate one.
It also seems necessary and proper, however, for
the exercise of the
power to be accompanied by a high standard of procedural fairness.’
46
Though O’Regan J dissented from the conclusion of the majority
that the power of committal could be constitutionally exercised
where a magistrate presided in an insolvency inquiry, there is
nothing in the judgments of the other members of the court to
suggest
that anything less than a ‘high standard of procedural
fairness’ is essential in cases of coercive committal: on the
contrary,
I read the judgments as endorsing the principle. That
includes the degree of proof. In my view, ‘high’ procedural
fairness
requires proof beyond reasonable doubt in regard to
wilfulness and mala fides even when coercion and not punishment is
the object.
Second consideration: no ‘purely coercive’ contempt committal
– the public vindication of judicial authority is always involved
The preceding discussion has assumed that it is possible to
disentangle an applicant’s reasons for seeking a respondent’s

committal in contempt proceedings, and thus that it is possible for
a civil contempt application or order to aim purely at the private
object of compliance, drained of punitive dimension. This is not
so. The High Court of Australia has expressed ‘considerable
difficulty’ with the notion that, in some cases, the purpose or
object of the proceedings is punitive and, in others, remedial
or
coercive. In any event, the court observed, the purpose of the
proceedings is not the same as the purpose or object of the
individual bringing them. And:
‘…
[P]roceedings for breach of an order or
undertaking have the effect of vindicating judicial authority as well
as a remedial or coercive
effect. Indeed, if the person in breach
refuses to remedy the position, as is not unknown, their only effect
will be the vindication
of judicial authority.’
The court went on to hold that ‘purpose or object cannot readily be
disentangled from effect’ and that it therefore had to be
acknowledged that punitive and remedial objects are ‘inextricably
intermixed’.
47
In
Videotron Ltée v Industries Microlec Produits
Électroniques Inc
,
48
the majority of the Supreme Court of Canada, despite the strong
civil setting provided by the Quebec Code of Civil Procedure,

similarly held that the penalty for contempt of court, even when
used to enforce a purely private order, inevitably involves an
element of public law, ‘because respect for the role and authority
of the courts, one of the foundations of the rule of law,
is always
at issue’. And in England it has long been accepted that the
applicant in contempt proceedings must establish the
requisites
beyond reasonable doubt.
49
In the United States, the constitutional setting differs markedly
from that in other comparable jurisdictions, including ours,
since
the Due Process clause applies only when the proceedings are
properly classified as criminal. The federal courts therefore
acquire jurisdiction over state proceedings under that clause only
when the proceedings can be so classified, and a bifurcated
classification of contempt proceedings for the purposes of applying
the federal guarantees of the United States constitution is
therefore unavoidable. The approach of the US Supreme Court to the
classification of contempt must be seen against this background.
It
means that typology is determinative of constitutional protection
under the clause in question, whereas under the South African
Constitution it is not.
And the relevant decisions in the United States, though performing
an obligatory bifurcated classification, express some measure
of
discomfort with it. Thus, the US Supreme Court has observed that it
would be ‘misguided’ to attempt to classify relief
by reference
to the supposed purpose of the laws, since ‘In contempt cases,
both civil and criminal relief have aspects that
can be seen as
either remedial or punitive or both: when a court imposes fines and
punishments on a contemnor, it is not only vindicating
its legal
authority to enter the initial court order, but it also is seeking
to give effect to the law’s purpose of modifying
the contemnor’s
behavior to conform to the terms required in the order’.
50
The court has also referred to the distinction between civil and
contempt fines as ‘somewhat elusive’.
51
Given our very different constitutional setting, the approach of the
English, Australian and Canadian courts seems convincing to
me. As
they have found, there is no true dichotomy between proceedings in
the public interest and proceedings in the interest
of the
individual, because even where the individual acts merely to secure
compliance, the proceedings have an inevitable public
dimension –
to vindicate judicial authority. Kirk-Cohen J put it thus on behalf
of the full court, ‘Contempt of court is not
an issue inter
partes; it is an issue between the court and the party who has not
complied with a mandatory order of court’.
52
Elaborating this, Plasket J pointed out in the
Victoria Park
Ratepayers
case that contempt of court has obvious implications
for the effectiveness and legitimacy of the legal system and the
legal arm
of government: there is thus a public interest element in
every contempt committal.
53
He went on to explain that when viewed in the constitutional
context –
‘
it is clear that contempt of court is not merely a
mechanism for the enforcement of court orders. The jurisdiction of
the superior
courts to commit recalcitrant litigants for contempt of
court when they fail or refuse to obey court orders has at its heart
the
very effectiveness and legitimacy of the judicial system. …
That, in turn, means that the court called upon to commit such a
litigant
for his or her contempt is not only dealing with the
individual interest of the frustrated successful litigant but also,
as importantly,
acting as guardian of the public interest’.
These expositions seem to me compelling. A court in considering
committal for contempt can never disavow the public dimension
of its
order. This means that the use of committals for contempt cannot be
sundered according to whether they are punitive or
coercive. In
each, objective (enforcement) and means (imprisonment) are
identical. And the standard of proof must likewise be
identical.
This approach conforms with the true nature of this form of the
crime of contempt of court. As pointed out earlier (para 10),
this
does not consist in mere disobedience to a court order, but in the
contumacious disrespect for judicial authority that is
so
manifested. It also conforms with the analysis in
Beyers
(para 11 above), where this court held that even though enforcement
is the primary purpose of committal, it is nevertheless not
imposed
merely because the obligation has not been observed, ‘but on the
basis of the criminal contempt of court that is associated
with it’.
The punitive and public dimensions are therefore inextricable: and
coherence requires that the criminal standard of
proof should apply
in all applications for contempt committal.
Finally, as pointed out earlier (para 23), this development of the
common law not require the applicant to lead evidence as to
the
respondent’s state of mind or motive: once the applicant proves
the three requisites (order, service and non-compliance),
unless the
respondent provides evidence raising a reasonable doubt as to
whether non-compliance was wilful and mala fide, the requisites
of
contempt will have been established. The sole change is that the
respondent no longer bears a legal burden to disprove wilfulness
and
mala fides on balance of probabilities, but need only lead evidence
that establishes a reasonable doubt. It follows, in my
view, that
Froneman J was correct in observing in
Burchell
(para 24)
that in most cases the change in the incidence and nature of the
onus will not make cases of this kind any more difficult
for the
applicant to prove. In those cases where it will make a difference,
it seems to me right that the alleged contemnor should
have to raise
only a reasonable doubt.
To sum up:
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 requirements.
The respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as are appropriate
to
motion proceedings.
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.
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.
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities.
Application to facts: did CCII show beyond reasonable doubt that
the Auditor-General’s non-compliance was wilful and mala fide?
The question therefore is whether CCII proved beyond reasonable
doubt that the Auditor-General’s failure to comply timeously
with
Hartzenberg J’s order was wilful and mala fide. As explained
earlier (para 4), the default fell into two categories –
that
regarding the second part of the order, which related to what the
parties referred to as the ‘audit files’; and that relating
to
the first part, namely the draft reports. Regarding both delays,
the Auditor-General committed himself to an extensive answering
affidavit in which he volunteered an explanation. At the outset of
his argument Mr Marcus conceded that the Auditor-General’s
undemurring acquiescence in this procedure precluded a challenge, in
the present case, to its constitutionality. But the discussion
above has necessarily traversed the propriety of such proceedings,
whose use (subject to case-by-case clarification of the respondent’s
constitutional protections) has been found to pass constitutional
muster.
As mentioned earlier (para 4), after the proceedings were
instituted, and before De Vos J heard the matter and gave judgment
on
14 October 2004 (apparently on the same day), there was
compliance in relation to the four categories of documents mentioned
in
part two of Hartzenberg J’s order (audit files; contracts;
minutes; and working papers). After De Vos J granted the
Auditor-General
leave to appeal in November 2004, the
Auditor-General supplied CCII with all the draft reports, so
complying with part one.
CCII’s complaint is thus two-fold: (i) that the Auditor-General
had not complied with the bulk of the order when the present
proceedings were instituted; (ii) that he supplied the draft reports
only after De Vos J delivered judgment in October 2004. Issue
(i)
relates principally to the costs in the court below; but issue (ii)
– on which the great bulk of the argument before us focused
–
goes to the heart of De Vos J’s finding of contempt and the
suspended penalty she imposed for it.
The 40 days Hartzenberg J granted for compliance with his order
expired on 12 February 2003; but before this the Auditor-General
applied for leave to appeal. This had the effect of suspending the
order. The application was set down for hearing on 13 March
2003.
But the Auditor-General withdrew it after discussion between the
parties’ legal representatives seemed to result in a
common
understanding of the meaning and effect of the order.
But this was not so. On 15 May 2003 (approximately forty days after
the application for leave to appeal was withdrawn), the
Auditor-General’s
attorneys made a first delivery to CCII’s
attorneys. It was a bundle of documents consisting of some 751
pages, together with
a schedule listing the documents he refused to
deliver.
As regards draft versions of the joint
investigating team’s report, he provided two documents: a draft
report of the Public Protector
consisting of 78 pages, and chapter
12 of a draft report prepared by the Auditor-General, consisting of
21 pages.
CCII’s attorneys protested in a letter of 27 May 2003 that para
1.1 of Hartzenberg J’s order contained ‘no limitation’.
The
Auditor-General was obliged to provide ‘all and complete draft
versions of the investigation report’: ‘By this is meant
provision of copies of all drafts of the report of the three
investigating agencies as well as those of the joint report.’ The
Auditor-General’s attorneys in reply insisted that ‘Your
clients’ entitlement in terms of the order of court was for
documents
relating to the reduced record. This relates to the draft
report as well.’ The letter continued: ‘Our client is in the
process
of examining whether or not there are further documents
which it may be obliged to disclose and will revert in due course.’
On 12 June 2003, CCII launched the present proceedings. Apart from
costs CCII sought (a) a declaration that the Auditor-General
had
failed to comply fully with the order of Hartzenberg J; (b) a
declaration that he was in contempt of the order; (c) a direction
that he comply fully with the order within two weeks; and (d) as a
sanction for the contempt, the imposition of one month’s

imprisonment, suspended on condition of timeous compliance with (c).
Only thereafter was there compliance in regard to the audit
reports.
The Auditor-General’s answering affidavits – lodged on 31 July
2003, while the draft reports were still outstanding –
asserted that it had always been his intention to comply with the
order, and affirmed that he was committed to compliance, since
‘particularly given the constitutional obligations of the
institution of Auditor-General it would be remiss in the extreme not
to comply with a court order’; and
stated that he was still ‘endeavouring to comply fully with the
order’, was doing ‘everything possible to compile the
documentation’
ordered to be disclosed, and that it was ‘plain’
that he had endeavoured, to the best of his ability, to comply with
the order.
With regard to the ‘audit files’, he set out the complexity and
scope of the task required, as well as the administrative

arrangements he undertook to ensure compliance. He emphasised that
at some stage 12 persons, including himself, worked on the matter
simultaneously: since ‘a proper and credible process had to be
followed in considering these documents, any further resources
assigned to the task would not have speeded up the process’:
‘
Further, I wish to emphasise that no matter how vast
the teams may have been, at some point each and every document had to
be considered
by me personally, so that I could satisfy myself that I
was indeed complying fully with the Order.’
Regarding the first part of Hartzenberg J’s order, he stated that
‘My obligation relates only to the reduced record,’ and asserted
that ‘all draft reports relating to the reduced record have been
released’ to CCII.
Mr Rogers urged us to endorse De Vos J’s finding that the
Auditor-General was in clear contempt of Hartzenberg J’s ruling

and that, given the clarity of the terms of that order, the only
appropriate inference was that he had acted wilfully and mala fide.
I am unable to accept this submission, or to agree with De Vos J’s
approach to the evidence. Central here is that not only the
Auditor-General committed himself to motion proceedings: CCII did
too. Large in that choice loomed the fact that the parties
were in
dispute about the reasons and justifications for the admitted
failure to comply timeously with Hartzenberg J’s order.
The
Auditor-General asserted that his default was unintentional: in the
case of the audit files, it was because of the administrative
burden
of compliance; and in the case of the draft reports it was because
of the interpretation he accorded the order. CCII asserted
that
there was no justification for the default and that the inference to
be drawn from the Auditor-General’s own account was
that his
non-compliance was wilful and mala fide.
How was this factual dispute to be resolved? CCII did not ask for
the matter to be referred to oral evidence, or for the
Auditor-General
to be cross-examined. Had that happened, and had
the Auditor-General given viva voce evidence – or declined to do
so – the
disputed facts would have been determined in effect by a
live contest resulting in a trial of the issues. Instead, CCII
chose
to argue, on the opposing affidavits, that the requisites for
contempt of court had been fulfilled.
That conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court for more
than 80
years.
54
Yet motion proceedings are quicker and cheaper than trial
proceedings, and in the interests of justice courts have been at
pains
not to permit unvirtuous respondents to shelter behind
patently implausible affidavit versions or bald denials. More than
sixty
years ago, this court determined that a judge should not allow
a respondent to raise ‘fictitious’ disputes of fact to delay
the
hearing of the matter or to deny the applicant its order.
55
There had to be ‘a bona fide dispute of fact on a material
matter’.
56
This means that an uncreditworthy denial, or a palpably implausible
version, can be rejected out of hand, without recourse to oral
evidence. In
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd,
57
this court extended the ambit of uncreditworthy denials. They
now encompassed not merely those that fail to raise a real, genuine
or bona fide dispute of fact, but also allegations or denials that
are so far-fetched or clearly untenable that the Court is justified
in rejecting them merely on the papers.
Practice in this regard has become considerably more robust, and
rightly so. If it were otherwise, most of the busy motion courts
in
the country might cease functioning. But the limits remain, and
however robust a court may be inclined to be, a respondent’s
version can be rejected in motion proceedings only if it is
‘fictitious’ or so far-fetched and clearly untenable that it can
confidently be said, on the papers alone, that it is demonstrably
and clearly unworthy of credence.
Can the Auditor-General’s version be rejected on the affidavits as
‘fictitious’, or as demonstrably uncreditworthy? In my
view,
clearly not. Regarding his collation of the audit files, which CCII
received in adequate form only after the current proceedings
were
initiated, CCII understandably complains that on the
Auditor-General’s own version too little resources were devoted to
the task, and too late. But it is clear that he did not sit idly
by. He assigned staff to the task and engaged himself in it
as set
out in the extract quoted above. He gives details of these efforts.
And throughout, he asserts the good faith of his efforts
to comply
with the order.
Mr Rogers for CCII subjected the Auditor-General’s account to
searching criticism and on the affidavits alone there certainly
appear to be gaps and insufficiencies in the account tendered.
Despite this, I do not think that his assertions can be rejected
as
fictitious or as so implausible as to warrant dismissal without
recourse to oral evidence.
The draft reports stand on a different footing. The order
Hartzenberg J granted is unambiguous. It requires the
Auditor-General,
without qualification, to hand over ‘
all draft
versions
’ of the joint investigating team’s report. In his
answering affidavit, the Auditor-General asserts only that this
refers to
the ‘reduced record’. His stance requires some
background. In the proceedings before Hartzenberg J – the record
of which
the parties agreed during argument should be placed before
us; rightly so, given its relevance – the Auditor-General’s
answering
affidavit made much of the bulk of the material that he
and his staff would be required to peruse if the application for
access
were granted. In reply, Dr Richard Young, the managing
director of CCII, explained that he was ‘not aware’ when
launching
the application of the bulk of the record. He therefore
emphasised that CCII’s interest lay solely ‘in that portion of
the
record relating to its complaints’. The respondents knew, he
asserted, that CCII’s complaints ‘relate exclusively’ to the
acquisition of the corvettes and its deselection as a supplier
(together with related issues). He continued:
‘
Although
[CCII] believes that the [Auditor-General] has overstated the
magnitude of the burden of complying with [CCII’s] request,
[CCII]
is willing for purposes of the present proceedings to confine its
request to that portion of the [Auditor-General’s] record
which
relates to the matters specified … above. I shall refer to this
portion of the record as “the Reduced Record”.’
The deponent then
challenged the Auditor-General to –
‘
supplement his answering affidavit by indicating
whether he is willing to give [CCII] access to the Reduced Record
and, if not, to
justify such refusal’.
It is against the background of this fact – that CCII sought
access only to ‘the Reduced Record’ – that Hartzenberg J

issued his order. And the Auditor-General’s correspondence
consistently claimed thereafter that the first part of the order,
like the second, referred only to ‘the reduced record’. In his
answering affidavit in the contempt proceedings, he also claimed
that the draft reports to be furnished related solely to ‘the
reduced record’, and asserted that he had ‘released all draft
versions of the report submitted to Parliament in my possession to
which [CCII] is entitled in terms of my understanding of the
court
order’.
This was wrong. There is no ambiguity in Hartzenberg J’s order.
But is it possible to find on the affidavits alone, as CCII
urged,
that the Auditor-General’s stance was wilful and mala fide? I do
not think so. Telling in this regard is CCII’s own
correspondence. Twice it stumbles, not meaningfully, but tellingly,
over what ‘the reduced record’ constitutes and whether
it
encompasses the draft reports. Thus, its attorneys’ letter of 23
May 2003 clearly (and correctly) asserts that ‘there is
no
limitation in Paragraph 1 of the Order’. But the letter states
earlier that CCII’s counsel informed the Auditor-General’s
counsel ‘that they, our client and the writer all interpreted the
Order as referring to the so-called reduced record’. Notable
here
is that ‘the Order’ is referred to without differentiating its
parts or their application in relation to ‘the Reduced
Record’ –
which chimed with the Auditor-General’s stance regarding the draft
reports. Similarly, in a letter of 27 May 2003,
CCII’s attorneys
again allude to the reduced record, stating that ‘so as not to
allow any possibility for ambiguity to confuse
your client about the
documents which are due to our client under the Order, this includes
all
documents relating to the corvette component of the
Strategic Defence Packages’ – which again accords with the
Auditor-General’s
claim that only those draft reports bearing on
the reduced record had to be released.
These statements must of course be read in the light of CCII’s
sustained insistence that the first part of the order encompassed
all draft reports, not only those in the ‘reduced record’; but
the ambiguity of expression is not only unmistakable, but
significant,
for it runs counter to CCII’s submission that there
was no rational basis or explanation for the Auditor-General’s
understanding
of the order. In my view, the Auditor-General’s
claim that he so understood the order – though clearly wrong –
is not entirely
incapable of comprehension.
58
Mr Rogers for CCII emphasised that the Auditor-General had not
claimed to rely on legal advice in taking his stand on the meaning
of the order. That is true; but his stance is nevertheless not
capable of being rejected on the papers as ‘fictitious’ or
palpably uncreditworthy, without his being afforded an oral hearing.
In the light of the proper approach to deciding factual disputes in
motion proceedings, I should add that on the particular form
of
process the parties committed themselves to in this case I do not
think that it would make any difference had the onus been
only proof
on balance of probabilities. The accepted approach requires that,
subject to ‘robust’ elimination of denials and
‘fictitious’
disputes, the court must decide the matter on the facts stated by
the respondent, together with those the applicant
avers and the
respondent does not deny. On that approach, since the
Auditor-General’s version cannot legitimately be ‘robusted’
away, his factual assertions, including those regarding his state of
mind, must be accepted as established. The proven facts thus
establish more than just a reasonable doubt, but a factual picture
that entails acceptance of the Auditor-General’s version;
though
that is incidental to the form of the proceedings before us.
To summarise: On the accepted test for fact-finding in motion
proceedings, it is impossible to reject the Auditor-General’s

version as ‘fictitious’ or as clearly uncreditworthy. There is
a real possibility that if a court heard oral evidence on the
factual disputes between the parties, it might accept the
Auditor-General’s version, or at least find that there was
reasonable
doubt as to whether the delay in complying with the
orders of Hartzenberg J was wilful and mala fide. CCII therefore
failed to
prove that the default was wilful and mala fide.
The finding of contempt and with it the penalty cannot stand. That
is not however an end of the matter. The first part of the
order De
Vos J granted was a declaration that the Auditor-General ‘has
failed to comply fully with this court’s order of 25
November
2002’. The third part was a directive to the Auditor-General ‘to
comply fully with the said order within a period
of four weeks from
the date of this order’. Those portions of the order were plainly
justified. So although CCII has failed
in its quest for a full
finding of contempt, with a concomitant penalty, it was entitled at
least to the declarator and to the
directory order.
For this reason, the costs order in the court below should remain
undisturbed. And even though the Auditor-General has had
substantial
success on appeal, the litigation and the central
question of principle in this court had a novel constitutional
character which
in my view would make it unjust to burden CCII with
the costs of the proceedings in this court. The parties should
therefore bear
their own costs of appeal.
The appeal accordingly succeeds. The order of the court below is
set aside to the extent that the finding of contempt and the
associated penalty are set aside. The appellant is to pay the
respondent’s costs in the court below. There is no order on the
costs of the appeal.
E CAMERON
JUDGE OF APPEAL
CONCUR:
HOWIE P
CACHALIA AJA
HEHER JA:
[68] The facts which Cameron JA has so meticulously analysed satisfy
me that the appellant must succeed, whether one applies the
civil or
criminal standard of proof to them. There is no doubt that the
appellant was at all material times able to comply with the
terms of
the order. But, without testing under cross-examination, the
materials were lacking for a rejection of the appellant’s
(non-wilful and
bona fide
) state of mind as expressed in his
affidavit and supported by the trend of the correspondence from his
attorneys.
[69]
Since Cameron
JA has thought it necessary to undertake an analysis of the onus in
civil contempt proceedings I deem it advisable to
express my views on
that subject lest silence (or equivocation) be taken for assent.
[70]
I agree that s
35 of the constitution is not engaged by the substance of such
proceedings. For the reasons which follow the influence
of that
section on the protection afforded by s 12(1)(a) and (b) must be very
slight.
[71]
I also agree
that, since all applications for committal for civil contempt carry
the threat of imprisonment, s 12 is immediately engaged
and the
respondent must be accorded the widest procedural fairness in the
conduct of the proceedings which is consistent with the
nature and
purpose of the remedy. Nevertheless I differ strongly from Cameron JA
that the necessary and proper standard of fairness
demands (a) that
the applicant prove his case beyond a reasonable doubt, and (b) that
the existing common law onus which rests on
a respondent to prove
absence of wilfulness and absence of
mala fides
requires
developing in such a manner as to burden the applicant with proof of
wilfulness and
mala fides
.
[72]
The critical
point of departure between us seems to be Cameron JA’s acceptance
of a material difficulty in separating coercive (or
remedial) orders
of imprisonment made in civil contempt proceedings from punitive
orders. This supposed problem is one which recurs
in judgments in
many jurisdictions. In my view it is overstated. Its solution is
cardinal to the proper categorization of civil contempt
proceedings
and, as I shall attempt to show, affords the opportunity to develop
our common law in accordance with constitutional
values.
[73]
Upon proper
analysis the distinction between coercive and punitive orders has
something to do with the intent of an applicant or the
court but much
to do with the consequences of the order. It is the latter aspect to
which any judicial officer who is required to
consider whether an
order of committal for contempt of court should be granted should pay
careful attention.
[74]
The following
are, I would suggest, the identifying characteristics of a coercive
order:
1. The sentence may be avoided by the respondent after its
imposition by appropriate compliance with the terms of the original
(breached)
order
ad factum praestandum
together with any other
terms of the committal order which call for compliance.
59
Such avoidance may require purging a default, an apology or an
undertaking to desist from future offensive conduct.
60
2. Such an order is made for the benefit of the applicant in order to
bring about compliance with the breached order previously made
in his
favour.
3. Such an order bears no
relationship to the respondent’s degree of fault in breaching the
original order or to the contumacy of
the respondent thereafter or to
the amount involved in the dispute between the parties.
4. Such an order is made
primarily to ensure the effectiveness of the original order and only
incidentally vindicates the authority
of the court.
[75] By contrast a
punitive order has the following distinguishing features:
1. The sentence may not be
avoided by any action of the respondent after its imposition.
2. The sentence is related
both to the seriousness of the default and the contumacy of the
respondent.
3. The order is influenced
by the need to assert the authority and dignity of the court and as
an example for others.
4. The applicant gains
nothing from the carrying out of the sentence.
[76] The differences are marked and important. They emphasise that a
coercive order of imprisonment is one to which a respondent
willingly
(if reluctantly) and defiantly submits in order to frustrate the
rights of another party. If he is ‘deprived’ of his
liberty it is
because he has, with knowledge of the order and the consequences of
disobedience, elected to flout the order. Such
an attitude has
nothing to do with an onus of proof: the respondent would or would
not submit or comply irrespective of the onus.
Nor can one properly
describe as ‘punishment’ that confinement to which a defendant of
his own choice submits to serve his own
ends. So understood, the
circumstances of a coercive detention (and the procedure which is
fair and appropriate to its imposition)
stand at a vast remove from
the case of enforced deprivation of liberty against which s 12 is
primarily concerned to guard.
61
[77] Of course there is a public dimension to both categories of
order. But its emphasis is not the same, as I have pointed out.
In
any event, the public interest in having court orders which do not
contain empty promises is a strong factor in favour of retaining
the
lighter onus.
[78] I consequently do not
accept that a party in civil proceedings who exposes himself to the
deprivation of freedom which flows
from civil contempt and a
consequent coercive order against himself deserves or needs an
extension or adaptation of the common law
to satisfy the imperatives
of s 12(1). In the circumstances the existing procedures are entirely
consonant with the constitutional
values which underpin s 12.
[79] In reaching this conclusion I am very conscious of the strong
body of judicial opinion which has voiced a conclusion contrary
in
its tenor to my own. I venture to suggest that there is, generally,
an absence of consideration of the aspects which I have set
out
shortly above. An exception is
Hicks v Feiock
[1988] USSC 72
;
485 US 624
(1988) in which the Supreme Court, despite differences in the result,
was unanimous in finding that civil contempt proceedings are
primarily coercive in nature and require proof on a balance of
probabilities. I disagree with my colleague that differences in the
constitutional backgrounds of the United States and South Africa have
any significant bearing on the plain logic which it espouses
and
which is, in my view, of equal relevance to the procedural safeguards
against abuse of the liberty provision in s 12(1) and to
remedies for
the breach of civil orders as our legal system knows them.
62
[80] I would go further.
The extension of the criminal standard of proof to civil contempt
would have harmful consequences. In my
experience the ordinary
litigant (often an indigent woman
63
)
finds it difficult enough under present procedures to pin down a
party who is determined to avoid the consequences of a judgment.
Absence of wilfulness and
mala fides
are frequently highly
subjective and the respondent’s protestations often serve to carry
the day, particularly as these are matters
within his own ken and the
applicant seldom has the means to pursue the enquiry with the
necessary vigour. If the onus were to be
increased to one beyond
reasonable doubt the efficacy of the remedy (and with it the worth of
a civil judgment) would be reduced,
to the detriment of justice.
64
[81] I should also add that, in principle, it would be wrong and
unfair to align the frailty of the subject with the power of the
State by requiring the former to discharge the criminal onus without
comparable means to do so, unless such a conclusion cannot be
avoided.
[82] That is indeed the
only conclusion in punitive proceedings for contempt. For that reason
the law does require development: a
judicial officer who has found a
litigant in civil proceedings to be in contempt and who forms the
opinion that a punitive sentence
may be warranted, should (whether or
not he imposes a coercive sentence) refer the matter to the Director
of Public Prosecutions
with a view to prosecution in a criminal
court. This would in my view be a desirable and justified development
of the common law
to ensure that those forms of the remedy of
contempt of court (and the concomitant procedures) which are criminal
in substance are
tried in accordance with criminal standards, while
leaving those that are truly civil in history, objectives and effects
to be treated,
as they always have been, according to civil
standards.
[83] The existing reverse
onus of proof renders the prospect of a finding against a respondent
in contempt applications more likely
than the application of a
heavier onus would. Since such an onus has a tendency towards
deprivation of the freedom of the subject
it must be able to
withstand constitutional scrutiny at the previously mentioned level
of procedural fairness.
[84] Applying the test of examination of the nature of the
deprivation and its purpose (
De Lange v Smuts NO
at para 143),
I am satisfied that the existing procedure survives scrutiny. The
following considerations militate against a development
of the common
law as Cameron JA proposes.
1. The existing reverse onus is a rational response to a proved
breach of a court order which confers a right of enforcement on a
party. It is proper and satisfies one’s sense of justice that the
breaching party should be required to justify non-compliance.
2. As I have pointed out
earlier, the subject-matter of the reverse onus often lies peculiarly
within the knowledge of the respondent.
In such circumstances equity
favours the holder of the order and demands that the already
defaulting respondent not only appear to
play open cards but that he
satisfy the court that he is now indeed doing so.
3. The proceedings are
civil in substance and the coercive imprisonment which may follow is
a civil remedy. As I have attempted to
show above the deprivation of
freedom which is threatened is of a singular nature not warranting
special safeguards.
4. There is no evidence in
the long history of the remedy that injustice has ever flowed from
the application of the reverse onus
in its present form.
5. Abolishing the existing
reverse onus will simply render the remedy less effective without
tending towards a corresponding advantage
in the administration of
justice.
J A HEHER
JUDGE OF APPEAL
CONCUR:
FARLAM JA
1
Constitution
Chapter 9, s 181(1) – ‘The following institutions strengthen
constitutional democracy in the Republic: … (e)
The
Auditor-General’. Section 181(2): ‘These institutions are
independent, and subject only to the Constitution and the law,
and
they must be impartial and must exercise their powers and perform
their functions without fear, favour or prejudice.’
2
CCII
Systems (Pty) Ltd v Fakie NO
2003 (2) SA 325
(T).
3
In
full
(2003 (2) SA 325
(T) at 335-336):
‘
1
The first respondent [the Auditor-General] is ordered to provide the
applicant by no later than 40 Court days from the date of
this order
with the following records:
1.1
all draft versions of the report submitted to Parliament by the
joint investigating team regarding the so-called Strategic Defence
Packages for the procurement of armaments for the South African
National Defence Force;
1.2
in respect of all audit files concerning the Strategic Defence
Packages for the procurement of armaments for the SA National
Defence Force from 1 January 1998 to 20 November 2001 dealing with:
1.2.1 the de-selection of the applicant as a supplier
of the combat suite's information management system and the
selection instead
of the detexis diacerto combat suite databus;
1.2.2
the selection of the supplier of the systems management system,
navigation distribution system and the integrated platform
management system simulator;
1.2.3
the role of African Defence Systems (Pty) Ltd, a company controlled
by Thomson-CSF of France (which later changed its name
to Thales
International), in the supply of the combat suite for the Corvettes
and its conflict of interest by virtue of its involvement
in the
supply of the Corvettes at various different levels, namely as:
1.2.3.1 a member of the consortium constituting the
prime contractor for the supply of Corvettes;
1.2.3.2
the supplier of the combat suite and at the same time being the
combat suite integrator;
1.2.3.3
the supplier of various systems and subsystems for the combat suite,
including the SMS and the combat management system;
and
1.2.3.4
an associate company (ie a company in the Thomson-CSF group) of the
supplier of the Detexis system;
1.2.4 the conflict of interest of Shamin Shaikh as:
1.2.4.1 the Department of Defence's Chief of
Acquisitions and chairperson or member of various committees and
boards involved in
the assessment of the SDP; and
1.2.4.2
brother of Schabir Shaikh, who at all material times had an indirect
interest in ADS;
1.3
all the documents and records in respect of which [he] has no
objection in terms of chap 4 or s 12 of Act 2 of 2000; and
1.4
a list of all the documents and records in respect of which [he]
objects in terms of the provisions of the aforesaid Act 2 of
2000,
setting out clearly and concisely (a) a description of the document
or record, (b) the basis for the objection, (c) an indication
if the
objection relates to the whole document or only to portions thereof
and if so, (d) to which portions.’
2.
The respondents [the Auditor-General, the Public Protector, the
National Director of Public Prosecutions and the Minister of
Defence] are ordered jointly and severally to pay the applicants’
costs of the application inclusive of the costs of two counsel.’
4
S
v Beyers
1968 (3) SA 70
(A).
5
Melius
de Villiers
The Roman and Roman-Dutch Law of Injuries
(1899)
page 166: ‘Contempt of court … may be adequately defined as an
injury committed against a person or body occupying a
public
judicial office, by which injury the dignity and respect which is
due to such office or its authority in the administration
of justice
is intentionally violated.’ Cf
Attorney-General v Crockett
1911 TPD 893
925-6 per Bristowe J: ‘Probably in the last resort
all cases of contempt, whether consisting of disobedience to a
decree of the
Court or of the publication of matter tending to
prejudice the hearing of a pending suit or of disrespectful conduct
or insulting
attacks, are to be referred to the necessity for
protecting the fount of justice in maintaining the efficiency of the
courts and
enforcing the supremacy of the law.’
6
S v Mamabolo
[2001] ZACC 17
;
2001
(3) SA 409
(CC) para 14, per Kriegler J, on behalf of the court
(where contempt of court in the form of scandalising the court was
in issue).
7
Per
Sachs J in
Coetzee v Government of the Republic of South Africa
[1995] ZACC 7
;
1995 (4) SA 631
(CC) para 61, quoted and endorsed by the court
in
Mamabolo
(above). In
Coetzee
, statutory procedures
for committal of non-paying judgment debtors to prison for up to 90
days – which the statute classified
as contempt of court – were
held unconstitutional.
8
The
Roman-Dutch law seems to offer no trace of private enforcement of
criminal contempt remedies for disobedience of a civil order:
see
Melius de Villiers, note 5 above, pages 166-173. Cf
Attorney-General v Crockett
1911 TPD 893
917 922 where it was
held that, as regards criminal practice in matters of contempt,
English procedure should be followed.
9
Although
money judgments cannot ordinarily be enforced by contempt
proceedings, ‘it is well established that maintenance orders
are
in a special category in which such relief is competent’:
Bannatyne v Bannatyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC) para 18.
10
Cape Times Ltd v Union Trades
Directories (Pty) Ltd
1956 (1)
SA 105
(N) 120D-E: ‘Generally speaking, punishment by way of fine
or imprisonment for the civil contempt of an order made in civil
proceedings
is only imposed where it is inherent in the order made
that compliance with it can be enforced only by means of such
punishment.’
11
JRL
Milton ‘Defining Contempt of Court’
(1968) 85
SALJ
387:
‘The concept of contempt of court is one which bristles with
curiosities and anomalies. Of the various examples which may be
chosen to illustrate this point perhaps the most striking is that of
the classification of contempts of court into civil contempt
(or
contempt in procedure) and criminal contempt.’
12
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) 367H-I;
Jayiya v Member of the Executive
Council for Welfare, Eastern Cape
2004 (2) SA 602
(SCA) paras 18
and 19.
13
Consolidated Fish (Pty) Ltd v
Zive
1968 (2) SA 517
(C) 524D,
applied in
Noel Lancaster Sands (Edms) Bpk v Theron
1974 (3)
SA 688
(T) 691C.
14
Noel Lancaster Sands (Edms) Bpk
v Theron
1974 (3) SA 688
(T)
692E-G per Botha J, rejecting the contrary view on this point
expressed
Consolidated Fish v Zive
(above). This court
referred to Botha J’s approach with seeming approval in
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) 368C-D.
15
See
the formulation in
S v Beyers
1968 (3) SA 70
(A) at 76E and
76F-G and the definitions in Jonathan Burchell
Principles of
Criminal Law
(3ed, 2005) page 945 (‘Contempt of court consists
in unlawfully and intentionally violating the dignity, repute or
authority
of a judicial body, or interfering in the administration
of justice in a matter pending before it’) and CR Snyman
Strafreg
(4ed, 1999) page 329 (‘Minagting van die hof is die wederregtelike
en opsetlike (a) aantasting van die waardigheid, aansien of
gesag
van ‘n regterlike amptenaar in sy regterlike hoedanigheid, of van
‘n regsprekende liggaam, of (b) publikasie van inligting
of
kommentaar aangaande ‘n aanhangige regsgeding wat die strekking
het om die uitstlag van die regsgeding te beïnvloed of
om in te
meng met die regsadministrasie in daardie regsgeding’).
16
1968
(3) SA 70
(A).
17
See
the remarks of Steyn CJ at 81A-B.
18
1968
(3) SA at 76E-G.
19
Drawing
on the preceding analysis in
Afrikaanse Pers-Publikasies (Edms)
Bpk v Mbeki
1964 (4) SA 618 (A) 626.
20
1968
(3) SA at 80C-H (my translation throughout).
21
Noel
Lancaster Sands (Edms) Bpk v Theron
1974 (3) SA 688
(T) 691A-D;
Putco Ltd v TV & Radio Guarantee
Co (Pty) Ltd
1985 (4) SA 809
(A) 836D-E;
Frankel Max Pollak
Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
1996
(3) SA 355 (A) 367-8.
22
See
the exposition by Pickering J in
Uncedo Taxi Service Association
v Maninjwa
1998 (3) SA 417
(E) 425G-426C and
Frankel Max
Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) 367J.
23
1998
(3) SA 417
(E). The Zimbabwe Supreme Court followed
Uncedo
in a related setting in
In re Chinamasa
2001 (2) SA 902
(ZSC)
922E-F and 924-5.
24
Constitution
s 35(1): ‘Everyone who is arrested for allegedly committing an
offence has the right – (a) to remain silent …’
Section
35(3): ‘Every accused person has a right to a fair trial, which
includes the right – (a) to be informed of the charge
with
sufficient detail to answer it; … (f) to choose, and to be
represented by, a legal practitioner, and to be informed of this
right promptly; (g) to have a legal practitioner assigned to the
accused person by the state and at state expense, if substantial
injustice would otherwise result, and to be informed of this right
promptly; (h) to be presumed innocent, to remain silent, and
not to
testify during the proceedings; …’.
25
1999
(2) SA 495
(E).
26
[2004]
3 All SA 623
(SE).
27
2004
(4) SA 350 (T).
28
Case
19869/05 (T), judgment of 21 December 2005.
29
Judgment
dated 3 November 2005,
[2006] JOL 16722
(E).
30
As
exemplified in
S v Mamabolo
(above).
31
See
most recently
S v Singo
[2002] ZACC 10
;
2002 (4) SA 858
,
2002 (2) SACR 160
(CC), where Ngcobo J collates and analyses much of the preceding
jurisprudence.
32
See
for instance
Osman v Attorney-General, Transvaal
[1998] ZACC 14
;
1998 (4) SA
1224
,
1998 (2) SACR 493
(CC) paras 22-23 and
S v Manamela
[2000] ZACC 5
;
2000 (3) SA 1
(CC),
2000 (1) SACR 414
(CC) paras 52-59.
33
As
Froneman J pointed out in
Burchell
(para 15), the CC, though
acknowledging that the right to individual freedom and security is
not absolute, has only once sanctioned
a legislative provision that
places a legal onus on an individual deprived of freedom, namely in
bail applications. There, an
important consideration was the
wording of the constitutional provision permitting deprivation of
liberty on arrest (everyone arrested
for an offence has the right
‘to be released from detention if the interests of justice permit,
subject to reasonable conditions’:
Bill of Rights s 35(1)(f);
S
v Dlamini
[1999] ZACC 8
;
1999 (4) SA 623
(CC) paras 6 and 38).
34
Osman v A-G Transvaal
1998 (4) SA 1224
(CC) para 22.
35
Bill
of Rights s 12(1)(b).
36
Bill
of Rights s 12(1)(a).
37
See
Bernstein v Bester NO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) paras 145-146
(O’Regan J) and
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC)
paras 22-25 (Ackermann J) (both dealing with the comparable
provision under the interim Constitution).
38
In
re Dormer
(1891) 4 SAR 64 at 85
per Kotzé CJ (‘Contempts of court are certainly in some
respects analogous to criminal offences,
but they are a distinct
species of offence, to which a special mode of summary procedure is
applicable, and do not admit of the
ordinary and usual forms and
modes of criminal procedure’), applied
in
Afrikaanse Pers-Publikasies (Edms) Bpk v Mbeki
1964 (4) SA
618
(A) 626.
39
Witham v Holloway
(1995) 131 ALR 401
(HC of A) 408, per Brennan, Deane, Toohey and
Gaudron JJ.
40
Cf
the approach of Sachs J in
Coetzee v Government of the Republic
of South Africa
[1995] ZACC 7
;
1995 (4) SA 631
(CC) para 43.
41
Compare
Nel v le Roux
[1996] ZACC 6
;
1996 (3) SA 562
(CC) para 11, where it was held
that a recalcitrant witness who is examined under
s 205
of the
Criminal Procedure Act 51 of 1977
under the procedure of
s 189
is
not an ‘accused person’ and therefore not entitled ‘directly’
to fair trial rights, but that such an examinee is ‘unquestionably
entitled to procedural fairness’.
42
Uncedo
1998 (3) SA 417
(E) 427I-J.
43
In
Hicks v Feiock
[1988] USSC 72
;
485 US 624
(1988), the question was the
classification of relief imposed in a state court contempt
proceeding as civil or criminal in nature,
for purposes of applying
the Due Process clause and other provisions of the United States
constitution, since the protections in
question do not apply when
the relief is civil in nature. That constitutional setting differs
considerably from ours, which in
my view offers more varied
possibilities in characterising the proceeding in question, and in
determining the appropriateness of
the applicable protections.
Despite the apparently greater rigidity of the distinction in United
States constitutional law, the
majority of the court observed that
in contempt cases, both civil and criminal relief ‘have aspects
that can be seen as either
remedial or punitive or both’ (485 US
at 625), and that the ‘civil’ and ‘criminal’ labels of the
law ‘have become increasingly
blurred’ in state law
codifications (485 US at 631). See too
International Union,
United Mineworkers of America v Bagwell
[1994] USSC 43
;
512 US 821
(1993)
826-830, dealing with ‘the somewhat elusive distinction between
civil and criminal contempt fines’.
44
Nel
v le Roux
[1996] ZACC 6
;
1996 (3) SA 562
(CC)
(committal of recalcitrant witness under procedures in the
Criminal
Procedure Act 51 of 1977
);
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA
785
(CC) (permitting committal of recalcitrant witnesses in
sequestration proceedings by magistrate,).
45
The
same applies to
Bannatyne v Bannatyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC),
on which counsel for CCII relied: but there, in upholding the
importance of contempt committal against maintenance defaulters
as
process in aid, the CC did not consider the standard of proof.
46
[1998] ZACC 6
;
1998
(3) SA 785
(CC) para 147.
47
Witham
v Holloway
(1995) 131 ALR 401
(HC of A) 407-408.
48
(1992)
96 DLR (4
th
) 376 (SCC) 398. The vigorous dissent of
l’Heureux-Dubé J turned on the special nature of injunctive
relief in its specific
setting in the Quebec Code of Civil
Procedure: see pages 386f, 387g, 387-388 and especially 395g.
49
Re Bramblevale Ltd
[1969] 3 All ER 1062
(CA) and the cases following it.
50
Hicks
v Feiock
[1988] USSC 72
;
485 US 624
(1985) at
635.
51
International Union, United
Mineworkers of America v Bagwell
512 US 821 (1993) 830.
52
Federation
of Governing Bodies of South African Schools (Gauteng) v MEC for
Education, Gauteng
2002 (1) SA
660
(T) 673D-E (Southwood & Basson JJ concurring).
53
Victoria Park Ratepayers
(above) para 5.
54
Frank
v Ohlsson’s Cape Breweries Ltd
1924 AD 289
at 294, per Innes CJ.
55
Peterson v Cuthbert & Co
Ltd
1945 AD 420
at 428, per
Watermeyer CJ.
56
Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162-1164, per Murray AJP.
57
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-635, per Corbett JA.
58
There
is long-standing authority that a misunderstanding as to the true
meaning of an order negatives an inference that non-compliance
is
wilful:
Botha v Dreyer
(1880) 1 EDC 74.
59
The
defendants in such proceedings carry ‘the keys of their prison in
their own pockets’:
Shillitani v United States
[1966] USSC 110
;
384 US 364
at 368 (1966).
60
In
the words of Sachs J in
Coetzee v Government of the Republic of
South Africa; Matiso and others v Commanding Officer, Port Elizabeth
Prison, and others
[1995] ZACC 7
;
1995 (4) SA 631
(CC) at para 43 fn 34,
imprisonment of this kind is regarded in the jurisprudence of the
United States as ‘a flexible remedial
instrument for failure to
fulfil an obligation’; cf
Chinamora v Angwa Furnishers
1998
(2) SA 432
(ZSC) at 447F-G.
61
There
is an intermediate kind of ‘contempt’ proceeding which does not
fit readily into either category.
Nel v Le Roux
[1996] ZACC 6
;
1996 (3) SA
562
(CC) and
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) provide
examples. Such cases do not involve civil contempt in the sense that
we are concerned with. Committal is there the
consequence of a
refusal to comply with a statutory coercion imposed in the public
interest. It is in this context that the dictum
of O’Regan J which
Cameron JA quotes at para 31 of his judgment has to be understood
.
62
In
Witham v Holloway
131 ALR 401
(HC of A) at 418;
183 CLR 525
at 547, McHugh J said,
‘
.
. . the chief reason for rejecting the United States approach of
classifying proceedings for contempt according to their objective
is
that it leads to the practical problems to which I have referred.’
I
have attempted to address the perceived practical objections in
paras 69 to 71 above. The learned Judge seems to have encountered
no
obstacle in the constitutional peculiarities of that country. Nor
indeed did the majority of the court express any such reservation
in
considering the America approach (at 406-7).
63
See
Bannatyne v Bannatyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC) para 27:
‘
Systemic
failures to enforce maintenance orders have a negative impact on the
rule of law. The courts are there to ensure that the
rights of all
are protected. The Judiciary must endeavour to secure for vulnerable
children and disempowered women their small
but life-sustaining
legal entitlements. If court orders are habitually evaded and defied
with relative impunity, the justice system
is discredited and the
constitutional promise of human dignity and equality is seriously
compromised for those most dependent on
the law.’
64
In
addition, as respondent’s counsel submitted, coercive execution by
way of attachment and sale of property is not available
to a civil
litigant who has obtained an order
ad factum praestandum
.
Contempt proceedings constitute the primary and, sometimes, the only
method of enforcement of such orders. See also in this regard
Witham
v Holloway
, fn 4 above, at 419 lines 10-22.