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[2024] ZAMPMBHC 42
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South African Legal Practice Council v Janse Van Rensburg (3938/2023) [2024] ZAMPMBHC 42 (13 June 2024)
FLYNOTES:
PROFESSION – Suspension –
Contempt
of court
–
Respondent
appeared in court as representative despite being suspended –
Admits to existence of orders and having had
knowledge of orders –
No appeal pending – Wilfully misrepresented that orders were
being appealed when this not
so – Committed perjury –
Blatant wilful and male fide disobedience of suspension order –
Respondent declared
to be in contempt of order – Suspended
sentence imposed.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: 3938/2023
1.
REPORTABLE: YES/ NO
2.
OF INTEREST TO OTHER JUDGES: YES/NO
3.
REVISED.
DATE:
13 JUNE 2024
SIGNED]
SIGNATURE
In
the matter between:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
ZIETTA
JANSE VAN
RENSBURG
Respondent
In
Re:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
ZIETTA
JANSE VAN
RENSBURG
First Respondent
VAN
RENSBURG AND VAN RENSBURG INC.
Second Respondent
REG
NO: 2019/099758/21
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and by release
to SAFLII. The date and time
for hand-down is deemed to be 15h00 on 13 June 2024
JUDGMENT
Roelofse
AJ:
[1]
The Applicant is the Legal Practice Counsel (‘the LPC’).
The Respondent (‘Ms Van Rensburg’) is an admitted
attorney practicing in this court’s jurisdiction under the name
and style of Van Rensburg and Van Rensburg Attorneys Incorporated.
Ms
Van Rensburg is the sole director of Van Rensburg and Van Rensburg
Incorporated. Ms Van Rensburg represented herself in these
proceedings.
[2]
The LPC approaches the court on an urgent basis for and order
declaring Ms Van Rensburg in contempt of an order of this court that
suspended Ms Van Rensburg from practicing as legal practitioner,
notary public and conveyancer (‘the suspension order’).
[3]
The LPC also seeks Ms Van Rensburg’s arrest and
committal to prison for 6 months (or such period as the court deem
appropriate)
half of such period of imprisonment to be suspended on
condition that Ms Van Rensburg complies with the suspension order.
Common
cause facts
[4]
The chronology of the following common cause facts and events
is important for purposes of this judgment. These facts and events
are:
(i)
The Court
[1]
granted the suspension order on 22 February 2024. In terms of the
order Ms Van Rensburg was suspended from practicing as legal
practitioner, notary public and conveyancer. The Court also granted
ancillary relief. The suspension order operated pending “…
.an
investigation and disciplinary proceedings to be instituted against
her [Ms Van Rensburg];”
[2]
;
(ii)
On 26 February 2024 Ms
Van Rensburg applied for leave to appeal the suspension order;
[3]
(iii)
On 13 March 2024, the LPC
applied for an order in terms of section 18(3)
[4]
of the Superior Courts Act 13 of 2010 (‘the Act’) (‘the
section 18(3) application’).
(iv)
On 3 April 2024, the
Court granted a section 18(3) order
[5]
in terms of which,
inter
alia
,
the suspension order was “…
.uplifted
in terms of
Section 18(1)
of the
Superior Courts Act 10 of 2013
”
[6]
and “
The
order shall be effected/implemented and/or executed with immediate
effect.
[7]
I shall refer to the
suspension order and the
section 18(3)
order collectively as ‘the
orders’ where necessary;
(v)
On 5 April 2024, Ms Van
Rensburg launched an application in terms of Rule 6(12)(c) of the
Uniform Rules for the reconsideration
of the section 18(3) order
[8]
;
(vi)
On 11 April 2024, the Court
dismissed Ms Van Rensburg’s
application for leave to appeal the suspension order;
(vii)
On 21 May 2024, Ms Van
Rensburg appeared before Mashile J in the urgent application of
Shofeeds (Pty) Ltd v Johan Moller and Two
Others (‘the Shofeeds
matter’).
[9]
Ms Van
Rensburg represented the respondents in the Shofeeds matter being
J Moller, S Joubert and Management Solutions CC
(‘Moller’).
[5]
It is common cause that the suspension order was granted and
that Ms Van Rensburg had knowledge of the order.
[6]
In addition, Ms Van Rensburg conceded at the hearing of the
matter that she has not yet petitioned the Supreme Court of Appeal
for
leave to appeal the suspension order nor has she delivered a
notice of appeal in the section 18(3) order.
Contempt
[5]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality (No 2)
[10]
,
the Constitutional Court held that:
‘
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 (Footnotes omitted).
[6]
The elements of contempt of court are: the existence of an
order; the contemnor must have knowledge of the order; non-compliance
with the order; and a wilful or
male fide
disregard of the
order. These elements must be proven beyond reasonable doubt if a
criminal sanction is sought for the contempt.
[7]
With regards to
the wilful disregard or
male
fide
of
the order, once the existence and knowledge of the order and its
non-compliance is proven, a presumption of wilfulness or
male
fides
is
established and the evidential burden of proving its absence is upon
the contemnor. This is how Nkambinde J in
Pheko
and Others
supra
[11]
has xpressed the principle:
‘
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.’
The
LPC’s case
[7]
The LPC alleges that Ms Van Rensburg was in wilful contempt of
the suspension order after the section 18(3) order was granted
because
Ms Van Rensburg: appeared before Mashile in the Shofeeds
matter on 21 May 2024; addressed a letter to the attorneys for
Shofeeds
(Pty) Ltd, Stefan Scheepers Inc (‘Scheepers’) on
20 May 2024 wherein Ms Van Rensburg confirmed that she was
representing
Moller in the Shofeeds matter; transmitted a notice of
intention to oppose the Shofeeds matter on behalf of Moller on 21 May
2024;
and, also on 21 May 2024, dispatched an email to the Registrar
to which Moller’s answering affidavits was attached.
[8]
Ms Van Rensburg admits in the answering affidavit (and
conceded at the hearing) the existence of the orders; that she had
knowledge
of the orders; and that she appeared before Mashile J on 21
May 2024 in the Shofeed matter.
[9]
The LPC therefore established the existence of the orders and
that Ms Van Rensburg had knowledge of the orders.
Ms
Van Rensburg’s defence
[8]
Ms Van Rensburg denies that she has acted in wilful or
male
fide
disregard of the order for three reasons: (i) she is
appealing both the orders and, presumably, by virtue of the
provisions of
section 18(1) of the act, the operation of the orders
are suspended; (ii) the section 18(3) order is a nullity, and (iii),
she
did not act as attorney for Moller.
Alleged
appeal of the orders
[9]
Ms Van Rensburg says that she cannot be found in contempt of
the suspension order as that order is subject to an appeal. In this
regard I recite the provisions of section 18 of the Act:
‘
(1) Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and
execution of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision
of the application
or appeal.
(2) Subject to subsection
(3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of
a decision that is an
interlocutory order not having the effect of a final judgment, which
is the subject of an application for
leave to appeal or of an appeal,
is not suspended pending the decision of the application or appeal.
(3) A court may only
order otherwise as contemplated in subsection (1) or (2) if the party
who applied to the court to order otherwise,
in addition, proves on a
balance of probabilities that he or she will suffer irreparable harm
if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders.
(4) If a court order
otherwise, as contemplated in subsection (1) –
(i) the
court must immediately record its reasons for doing so;
(ii) the aggrieved party
has an automatic right of appeal to the next highest court;
(iii) the court hearing
such an appeal must deal with it as a matter of extreme urgency; and
(iv) such order will be
automatically suspended, pending the outcome of such appeal.
(5) For the
purposes of subsections (1) and (2), a decision becomes the subject
of an application for leave to appeal or of
an appeal as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules.’
[10]
Therefore,
from the moment the suspension order was granted, Ms Van Rensburg
could no longer act as an attorney. From 26 February
2024
[12]
,
Ms Van Rensburg could again practice as an attorney because the
suspension order, by virtue of the provisions of section 18(1)
of the
Act was suspended pending a decision on her application for leave to
appeal. From 3 April 2024, Ms Van Rensburg was once
again prevented
from practicing because the court granted the section 18(3) order.
[10]
In terms of
section 18(4) Ms Van Rensburg has an automatic right to appeal the
section 18(3) order. Until Ms Van Rensburg exercised
this right by
delivering a notice of appeal to “next highest”
court
[13]
,
she was not allowed to practice.
[11]
This defence may be dismissed outright in light of the
concession made by Ms Van Rensburg that no appeal is pending in
respect of
the orders. In addition, no proof was furnished by Ms Van
Rensburg that any appeal is pending despite reference being made by
her
to a notice of appeal being attached to her affidavit as an
annexure.
[12]
This is however not where the issue of the absence of any
appeal stops. Ms Van Rensburg has misrepresented to Mashile J, the
Registrar,
the LPC, Scheepers and in the affidavits she has filed in
this application that an unspecified appeal or appeals are pending
against
the orders.
[13]
Ms Van Rensburg
made the misrepresentation to Mashile J at the hearing of the
Shofeeds matter when Mashile J expressly questioned
her right to
appear in light of the section 18(3) order that he had granted. The
LPC alleges that Ms Van Rensburg informed the
court that her
“
petition
is in the Supreme Court and it has not been opposed, that gives [me]
a marginal to assist [my] clients”
[14]
Ms Van Rensburg did not
deny this allegation in her answering and supplementary affidavits,
instead she states in her answering
affidavit that she annexes a copy
of “…
.the
appeal launched as the Supreme Court of Appeal against both the
Section 18 order and appeal.”
[15]
and that “
The
appeal will also be amended to include the matters that has developed
since, being the clear biased [sic] of this Honourable
Court”
.
In her supplementary affidavit Ms Van Rensburg says that the LPC’s
allegation “…
.are
noted and irrelevant in these proceedings.”
[16]
In paragraph 118
[17]
of Ms Van Rensburg’s answering affidavit she says: “
The
matter [Shofeeds] proceeded and I had to step in. I am comfortable
that I could, but would have preferred not to.”
[14]
It is clear from Ms Van Rensburg’s concessions and
evidence that: She knew about the orders and their import; and that
she
wilfully misrepresented that the orders were being appealed when
it was not.
[15]
In an email of 21
May 2021 that Ms Van Rensburg dispatched to the Registrar (to which
Moller’s answering affidavits were attached)
[18]
,
Ms Van Rensburg misrepresented to the Registrar that “…
.
My petition to appeal to the Supreme Court has been issued.”
In both Ms Van Rensburg’s
answering and supplementary affidavits, she gives no explanation for
telling the Registrar that
her petition has been issued. Why else
would Ms Van Rensburg inform the Registrar of the alleged appeal than
to ensure that the
documents be accepted because she, in light of the
alleged appeal, may continue to act as attorney?
[16]
On 21 May 2021 at 9:58 AM, Ms Van Rensburg dispatched an email
to the LPC wherein she, amongst other things, wrote:
“
My
petition to appeal has been issued and I shall supply you with a copy
for service. We had to wait for the transcriptions of the
hearings
and one was unfortunately not available.”
[17]
Ms Van Rensburg therefore misrepresented to the LPC that she
has appealed the suspension order (at least) whereas she has not.
[18]
On 22 May 2024 at
16:06, the LPC dispatched an email to Ms Van Rensburg.
[19]
The email, in relevant part, reads:
“
Please
take note that we have been advised that you appeared in the High
Court on behalf of a client on the 21 May 2024, as far
as the courts
order in the section 18(2) application you are not allowed to
practice and your conduct in appearing before Court
amounts to
misconduct and contravention of
section 93(3)
and (4) of the
Legal
Practice Act 28 2014
and is a criminal offence and a person in the
contravention of this provision is liable to a fine and/or
imprisonment, until such
time the Supreme Court of Appeal set aside
both Mpumalanga High Court (Mbombela) orders.
We
further wish to confirm that we have no knowledge of a petition to
the Supreme Court Of Appeal [sic] and even if it were served
on us
your status quo remains.”
[19]
Save for the reference to the wrong sub-section of the Act,
the LPC was correct. The section 18(3) order prevented Ms Van
Rensburg
from practicing in the absence of an appeal as contemplated
in section 18(4) of the Act.
[20]
On 25 April 2024,
Scheepers wrote to Ms Van Rensburg.
[20]
Paragraph 5 of Scheepers’ letter reads:
“
Verder let ons
daarop dat u Mev. Zietta Janse Van Resnburg as Prokureur hierin
[Shofeeds matter] optree. Ons ontvang graag die bevestiging
dat u
gemagtig is om as Prokureur hierin op te tree na aanleiding van
nuusberigte en Hofbevel onder saaknommer 3989/2023 gedurende
April
2024, waarin onder andere gemeld word dat u Mev. Janse van Rensburg
tans verbied word om as Prokuruer te praktiseer.”
[21]
On 25 April 2024,
Ms Van Rensburg wrote to Scheepers
[21]
informing him that “
[The]
suspension you are referring to is under appeal and she [Ms Van
Rensburg] is permitted to practice”
.
This constitutes a further misrepresentation relating to the alleged
appeal or appeals. Perhaps more importantly, Ms Van Rensburg
also
says in the letter that she confirms that an interdict has been
granted (on behalf of Moller), that a return date will be
received
shortly and threatens Scheepers with “…
.a
contempt of court issue…”
This
threat Ms Van Resnburg with no doubt made as attorney for Moller. In
addition, Ms Van Rensburg does not tell Scheepers that
she acts for
Moller in any other capacity.
[22]
Ms Van Rensburg
committed purgery by falsely stating in her sworn answering affidavit
that she appealed to the Supreme Court of
Appeal against “…
.the
order in terms of rule 18(1) and the dismissal of the appeal of 11
April 2024, on 23 April 2024, as per Annexure “AA5”
hereto”
[22]
In paragraphs 113 and 114 of the answering affidavit
[23]
,
Ms Van Rensburg repeats that she has lodged an appeal with the
Supreme Court of Appeal and refers to an annexure which is
purportedly
a copy of the appeal to the answering affidavit which
annexure does not exist. Ms Van Rensburg conceded at the hearing that
no
appeal was lodged.
[23]
Lest there be any
doubt that Ms Van Rensburg misrepresented that an appeal or appeals
have been lodged Ms Van Rensburg says in paragraph
13.2 of the
answering affidavit
[24]
that
the deponent to the LPC’s founding affidavit (Ms Townsend) “…
.
was present during the virtual hearing and it was stated that the
rule 18 decision is also suspended due to the appeal.”
[24]
The aforesaid deliberate misrepresentations of the alleged
appeal or appeals proves beyond a reasonable doubt that Ms Van
Rensburg
knew that she was suspended, therefore could not have
practiced as an attorney and that she was in wilful and
male
fide
defiance of the orders. Depending on what prejudice arose
for those to whom these misrepresentations were made because they may
have had acted on the misrepresentations, Ms Van Rensburg may have
committed fraud my making the misrepresentations as she did.
Alleged
nullity of the section 18(3) order
[25]
In paragraph
13.3 of her answering affidavit
[25]
,
Ms Van Rensburg alleges that:
“
The appeal
decision and ruling on the section 18(1) is
ultra
vires
and
has no effect in law.”
[26]
There can be no
doubt that Ms Van Rensburg refers to both the refusal of the
application for leave to appeal the suspension order
and the section
18(3) order. As basis for this allegation Ms Van Rensburg accuses
Mashile J of bias and that “
Every
obstacle was created to obstruct the course of justice.”
[26]
[27]
In paragraph 47 of
Ms Van Rensburg’s supplementary affidavit
[27]
she alleges:
“
The argument about
the appeal is therefore irrelevant as both the orders are void, as
prescribed by the Constitutional Court”.
[28]
Ms Van Rensburg holds the misperceived view that she did not
have to obey the orders. In paragraph 49 of her answering affidavit,
Ms Van Rensburg sets out as follows:
“
The exception
emphasized in the Matola case; where a court does not have the
authority to make a decision it is to be disregarded
at face value
notwithstanding if it was set aside by way of appeal or not. “Being
a nullity a pronouncement to that effect
was unnecessary. Nor did it
first have to be set aside by a court of equal standing”
[29]
In a footnote of
the answering affidavit
[28]
,
Ms Van Rensburg refers to paragraph 14 in the matter of the Master of
the High Court Northern Gauteng High Court, Pretoria v Motala
NO and
Others (172/11)
[2011] ZASCA 238
;
2012 (3) SA 325
(SCA). In paragraph
14 of that judgment, the following is said:
‘
In my view, as I
have demonstrated, Kruger AJ was not empowered to issue and therefore
it was incompetent for him to have issued
the order that he did. The
learned judge had usurped for himself a power that he did not have.
That power had been expressly left
to the Master by the Act. His
order was therefore a nullity. In acting as he did, Kruger AJ served
to defeat the provisions of
a statutory enactment. It is after all a
fundamental principle of our law that a thing done contrary to a
direct prohibition of
the law is void and of no force and effect
(Schierhout v Minister of Justice
1926 AD 99
at 109). Being a nullity
a pronouncement to that effect was unnecessary. Nor did it first have
to be set aside by a court of equal
standing. For as Coetzee J
observed in Trade Fairs and Promotions (Pty) Ltd v Thomson &
another
1984 (4) SA 177
(W) at 183E: ‘[i]t would be incongruous
if parties were to be bound by a decision which is a nullity until a
Court of an
equal number of Judges has to be constituted specially to
hear this point and to make such a declaration’. (See also
Suid-Afrikaanse
Sentrale Ko-operatiewe Graanmaatskappy Bpk v Shifren
& others and the Taxing Master
1964 (1) SA 162
(O) at 164D-H.)’
[30]
Ms Van Rensburg’s
reliance upon
Matola
supra
[29]
is entirely misplaced. In
Matola
,
the court placed a company under provisional judicial management and
appointed persons as joint judicial managers in circumstances
where
the Master through legislation has that power and not the court.
Nothing prevented Mashile J from granting the orders. Any
grievance
whatsoever Ms Van Rensburg wishes to raise over the orders must be
raised through appropriate proceedings in a competent
court. This
includes Ms Van Rensburg’s automatic right of appeal in terms
of section 18(4) of the Act or a petition to the
Supreme Court of
Appeal after her application for leave to appeal the suspension order
was dismissed. Ms Van Rensburg can
simply not ignore the orders
because she believes that the order is a nullity for whatever reason.
Capacity
in which Ms Van Rensburg acted for Moller
[28]
Over the capacity
in which Ms Van Resnburg appeared for Moller before Mashile J on 21
May 2024, Ms Van Rensburg says in paragraph
13.4 of her answering
affidavit
[30]
that:
“
The First
Respondent [Ms Van Rensburg] has the capacity to act on behalf of the
Respondents [Moller] in the Shofeeds matter in terms
of the extended
definition of
locus
standi
;”
[29]
In paragraph 69 of
her answering affidavit
[31]
,
Ms. Van Rensburg says:
“
If
the Respondents were given the opportunity, it would have been argued
(as it is in their appeal of that matter) that I have
locus
standi
in
terms of section 38 of the Constitution. This matter revolves around
an elephant, which is specifically protected game in terms
of the
Animal Welfare Act, and the matter is in the public interest.”
[30]
In paragraph 16 of
the founding affidavit
[32]
,
the LPC sets out the purpose of this application. The LPC mentions
that Ms Van Rensburg is continuing to render legal services
to the
public despite the suspension order. Ms Van Rensburg responds to the
LPC’s allegation as follows:
“
It [the LPC] does
not have the authority to limit my
locus
standi
given
section 38 of the Constitution.”
[33]
[31]
In paragraph 95 of the answering affidavit, Ms Van Rensburg
says:
“
I
specifically and clearly state it as such when I onboard a client
onto the new entity that is not a legal practice. As it is,
I wish to
downscale and/or not practice as a legal practitioner once all of the
storm has blown over.”
[32]
In paragraph 100
of the supplementary affidavit
[34]
,
Ms Van Rensburg alleges:
“
I do not deny
representing them [Moller]. The representation was legitimate as the
matter is appeal and failing which I have
locus
standi
in terms of the Constitution.”
[33]
Paragraph 100 of the supplementary affidavit discloses the
true nature of Ms Van Rensburg’s stance in this application.
She
fore mostly relies on the alleged appeals (which, according to
her own concession are non-existent) and in the alternative on what
she calls
locus standi
in terms of section 38 of the
Constitution.
[34]
Ms Van Rensburg’s clear conduct viewed objectively show
that her
locus standi
defence is a mere fabrication for
nowhere prior to her answering and supplementary affidavits has she
made any attempt to clarify
that she did not appear for Moller as its
attorney. Instead she, through her misrepresentations over the
appeals, attempted to
justify her representation of Moller as its
attorney.
[35]
I find that the first tree requirements for a finding of
contempt of court were established and that Ms Van Rensburg did not
succeed
in proving that she was not in wilful or
male fide
disobedience of the orders. I find that Ms Van Rensburg was in
blatant, wilful and
male fide
disobedience of the suspension
order and that she had demonstrated absolutely no intention to heed
the suspension order or section
18(3) order insofar as it suspended
her from practice from the date of the issue of the orders.
Sanction
[30]
Having found that Ms Van Rensburg was in contempt of the
suspension order and the section 18(3) order, I must now proceed to
consider
an appropriate sanction.
[31]
It is trite that civil contempt may attract a criminal
penalty. I see no reason why different principles should apply when
an appropriate
sentence in criminal proceedings is to be considered
as to an appropriate sentence in contempt proceedings. Both have the
same
aim, namely, to punish the offender.
[32]
I echo that which
was said by Shongwe J in
Ndou
v S
[35]
‘
Sentencing is the
most difficult stage of a criminal trial, in my view’
[33]
In this case, as in most other contempt cases, very little or
no attention is given to facts that the court will need to consider
an appropriate sentence once the contemnor’s guilt is
established. I am acutely mindful of what was said in S v Siebert
1998 (1) SACR 554
(A) by Olivier JA at 558i - 559a:
‘
Sentencing is a
judicial function sui generis. It should not be governed by
considerations based on notions akin to onus of proof.
In this field
of law, public interest requires the court to play a more active,
inquisitorial role. The accused should not be sentenced
unless and
until all the facts and circumstances necessary for the responsible
exercise of such discretion have been placed before
the court.’
[34]
In considering an
appropriate sanction, I have to consider the well-known sentencing
triad
[36]
: the offence, the
offender, and the interests of society.
[35]
Court orders must be obeyed or else the Rule of Law shall be
under threat. Contempt of court is a serious offence. The very
foundation
of society is to rely on courts to vindicate both its
individual or collective rights and to enforce its individual or
collective
obligations arising from our social compact or else
society will destroy itself. Despite Ms Van Rensburg’s
hollow claims
that she did what she thought was right not to obey the
orders, I still view her blatant disregard of the orders in a serious
light.
After all, she is a legal practitioner who should, without any
reservation, comply with the law.
[36]
I know very little about Ms Van Rensburg and nothing about her
personal circumstances. All I know is that she is an attorney from
Malelane who has been suspended from practice effective from 3 April
2024. On her own version she wishes to “
scale down
”
and do not wish to practice as an attorney any longer “
once
all of the storm has blown over
”.
[37]
In light of what I know from the papers about Ms Van
Resnburg’s circumstances, and in light of the sanction I intend
to impose,
I am of the view that I am, despite the paucity of
information about Ms Van Rensburg’s personal circumstances,
still able
to impose an appropriate sentence.
[38]
I take guidance
from what was said by KHAMPEPE ADCJ in Secretary of the Judicial
Commission of Inquiry into Allegations of State
Capture, Corruption
and Fraud in the Public Sector including Organs of State v Zuma and
Others:
[37]
‘
I should start by
explaining how the purposes of contempt of court proceedings should
be understood. As helpfully set out
by the minority in Fakie,
there is a distinction between coercive and punitive orders, which
differences are “marked and
important”. A coercive order
gives the respondent the opportunity to avoid imprisonment by
complying with the original order
and desisting from the offensive
conduct. Such an order is made primarily to ensure the
effectiveness of the original order
by bringing about compliance.
A final characteristic is that it only incidentally vindicates the
authority of the court that
has been disobeyed. Conversely, the
following are the characteristics of a punitive order: a sentence of
imprisonment cannot be
avoided by any action on the part of the
respondent to comply with the original order; the sentence is
unsuspended; it is related
both to the seriousness of the default and
the contumacy of the respondent; and the order is influenced by the
need to assert the
authority and dignity of the court, to set an
example for others.’ (Endnotes omitted)
[39]
I have decided to opt for a coercive order in so that Ms Van
Rensburg an opportunity to avoid imprisonment by complying with the
suspension order.
Costs
[40]
I see no reason why costs should not follow the result. No
counsel was employed by the parties. I display my displeasure with Ms
Van Rensburg’s conduct with an appropriate costs order, that
was in any event sought by the LPC.
[41]
In the premises, I made the following order:
(a)
The Respondent is declared to be in contempt of the order of this
court
dated 22 February 2024 under case number: 3938/2023 (‘the
order’);
(b)
The Respondent is sentenced to undergo 6 (SIX) months
imprisonment
the whole of which is suspended for 3 (THREE) years on condition that
the Respondent complies with the order;
(c)
The Respondent is ordered to pay the Applicant’s costs on an
attorney and client scale.
Roelofse AJ
Acting Judge of the High
Court
DATE
OF HEARING: 12
June 2024
DATE
OF JUDGMENT: 13 June 2024
APPEARANCES
For
the Applicant:
Ms
T Ratshibvumo of Ratshibvumo Attorneys Inc
For
the Respondent:
Ms
Janse van Rensburg represented herself.
[1]
Per
Mashile J.
[2]
Para.
2 of the order.
[3]
The
application for leave to appeal the suspension order is still
pending.
[4]
The
LPC states that the application was in terms of section 18(1),
however, the LPC approached the court in terms of section 18(3).
[5]
By
Mashile J.
[6]
Para.
2 of the order.
[7]
Para.
3 of the order.
[8]
That
application is still pending and is still to be set down for
hearing.
[9]
Under
Case Number: 2049/2024.
[10]
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) at para. 28.
[11]
Para.
36.
[12]
The
date of the delivery of the application for leave to appeal the
suspension order.
[13]
Which
is the full bench of this court.
[14]
Para.
52 of the founding affidavit at page 56.
[15]
Para. 113 of the answering affidavit at page 141.
[16]
Para. 15.1 of the supplementary affidavit at page 212.
[17]
Page
142.
[18]
Annexure
“FA12” at page 104.
[19]
Annexure
AA7 (at page. 153) which is attached to Ms Van Rensburg’s
answering affidavit.
[20]
Annexure
“FA7” at page 83.
[21]
Annexure
“FA8” at page 84.
[22]
Paragraph
8.14 of the answering affidavit at p. 119.
[23]
P.
141.
[24]
P.
120.
[25]
P.
120.
[26]
Para.
48 of the answering affidavit at page 127.
[27]
P.
230.
[28]
P.
128.
[29]
Which
she even refers to as “
the
Matola-exeption
”
.
[30]
P.
121.
[31]
P.
131.
[32]
P.
46.
[33]
Para. 85 of the answering affidavit at p. 136.
[34]
P.
241.
[35]
(93/12)
[2012] ZASCA 148
;
2014 (1) SACR 198
(SCA) (28 September
2012) at para. 14.
[36]
S v Zinn 1969(2) SA 537 (A) at 540G.
[37]
(CCT 52/21)
[2021] ZACC 18
;
2021 (9) BCLR 992
(CC);
2021 (5) SA 327
(CC) (29 June 2021).