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[2024] ZAECMKHC 96
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Mayfield Clays (Pty) Ltd v Makana Local Municipality and Others (2219/2024) [2024] ZAECMKHC 96 (29 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 2219/2024
In
the matter between:
MAYFIELD
CLAYS (PTY) LTD
Applicant
and
MAKANA
LOCAL MUNICIPALITY
First respondent
MUNICIPAL
MANAGER OF
MAKANA
MUNICIPALITY
NOMINE OFFICIO
Second respondent
THE
EXECUTIVE MAYOR OF
MAKANA
MUNICIPALITY
Third respondent
REASONS
FOR JUDGMENT
LAING
J
[1]
This was an application for an order declaring the respondents to be
in
contempt of court. An order to that effect was granted on 30 July
2024. The respondents have requested reasons, which follow below.
Background
[2]
In the applicant’s founding affidavit, it explained that it
conducted
kaolin mining operations on properties situated at or
adjacent to Mayfield Farm, which was owned by the first respondent.
On 31
October 2023, Pakati J granted an order under case number
3136/2023, directing the first respondent to comply with the
agreement
concluded on 9 September 2021 with the applicant. This
included: the maintenance of an additional buffer zone along the
perimeter
of the properties mined by the applicant; the clear
demarcation thereof with a fence or a line of painted boulders; the
removal
of anyone found on the properties; obtaining an interdict to
prevent the unlawful occupation or invasion thereof and to prevent
the erection and occupation of any structures thereon; and the
removal of any materials found on the properties in question.
[3]
On 12 December 2023, the sheriff served a copy of the order on the
first,
second, and third respondents. The sheriff also served a copy
on the remaining respondents.
[4]
The applicant alleged that it had a licence to mine kaolin for a
period
of 30 years. The licence required the applicant to,
inter
alia
, take steps to safeguard the environment, the mining area,
and any persons entitled to use the area against damage or injury. In
terms of the regulations made under the Mine Health and Safety Act 29
of 1996 (‘MHSA’), the applicant had to take reasonable
measures to ensure that no blasting activities were carried out
within 500 metres of,
inter alia
, any public thoroughfare or
place where people congregated. This entailed the creation and
maintenance of a buffer zone, allowing
the applicant to continue with
its blasting activities and mining operations.
[5]
Recently, informal settlements have become established on adjacent
land
that is either owned or administered by the first respondent. By
permitting unlawful occupation of the land in question, the first
respondent has placed the applicant’s mining operations at
risk. This prompted the applicant to approach the first respondent,
resulting in the conclusion of an agreement to enforce and maintain
the buffer zone. The agreement placed certain obligations on
the
first respondent, which informed the order made by Pakati J on 31
October 2023.
[6]
The first respondent, averred the applicant, failed to comply with
either
the agreement or the order. Consequently, the applicant was
unable to proceed safely with its mining operations. The applicant
alleged that members of the community continued to encroach onto
Mayfield Farm and the buffer zone itself, bringing them within
the
prescribed 500-metre blasting radius and placing them at considerable
risk. The first respondent was aware of the situation,
stated the
applicant, but had done nothing about it.
[7]
On 21 February 2024, the applicant’s attorneys called upon the
second
and third respondents to comply with the order. A meeting was
held on 25 March 2024 with the respondents’ attorneys and an
inspection
in loco
took place on 2 April 2024 at the mining
area. Representatives of the applicant, the first respondent, and the
respective attorneys
were present. This culminated in the first
respondent’s undertaking to furnish a report during the week of
22 April 2024
on the implementation of the order. No report was
furnished. The applicant’s attorneys demanded the report by no
later than
30 April 2024, failing which contempt proceedings would be
instituted. No response was received.
[8]
The applicant pointed out that the respondents had been aware of the
order
since 12 December 2023. The respondents had failed to take any
steps to give effect thereto. Consequently, the applicant made
application
for the respondents to be declared in contempt of Pakati
J’s order and sought their committal, subject to their making
use
of the opportunity to purge such contempt by implementing the
measures contained in the order within the stipulated timeframe.
Proceedings
on 30 July 2024
[9]
The applicant instituted contempt proceedings on 28 May 2024. The
respondents
delivered a notice of opposition on 26 June 2024 but
failed to deliver their answering papers. On 30 July 2024, the matter
came
before court on the uncontested opposed roll. In the absence of
any papers from the respondents and mindful of the serious nature
of
contempt proceedings, it is necessary to summarise what occurred at
the hearing itself.
[10]
The applicant’s counsel informed the court that the respondents
had, at the eleventh
hour, delivered notices in terms of rule
6(5)(d)(iii) and rule 35(12). The respondents’ counsel
explained that she had only
just been briefed. A request was made to
the applicant to allow further time for the completion of
investigations and the delivery
of the outstanding report, but this
was rejected. The first respondent proceeded, nevertheless, to
prepare a draft report that
it provided to its legal team during the
evening of 29 July 2024, i.e. on the eve of the contempt proceedings.
[11]
To this, the applicant’s counsel confirmed that the respondents
had indeed informed
the applicant’s attorneys about the draft
report during the evening before. They had served the notices in
terms of rule
6(5)(d)(iii) and rule 35(12) on the applicant’s
attorneys at 09h15 the next day, just before the commencement of
motion court
proceedings. Counsel contended that the respondents’
last-minute attempts to deal with the contempt application had been
in keeping with the pattern of conduct that they had displayed
throughout the course of the matter.
[12]
The respondents’ counsel contended, in turn, that the
underlying agreement with the
applicant was invalid. Furthermore, the
applicant no longer had any rights to the properties on which mining
operations were being
conducted.
[13]
The matter was stood down to allow the parties a final opportunity to
reach common ground.
After the lunch adjournment, the respondents’
counsel indicated that they wished to bring a postponement
application later
that afternoon. This was necessary to bring the
draft report to the court’s attention, explaining the steps
that had been
taken by the respondents to deal with the order and
demonstrating why the respondents had served the notices in terms of
rule 6(5)(d)(iii)
and rule 35(12). The respondents’ defence to
the contempt application would be readily apparent therefrom; there
were numerous
families presently staying inside the buffer zone and
the lease agreement that permitted the applicant access to the land
for mining
operations had expired on 31 May 2023. Consequently, it no
longer enjoyed
locus standi
.
[14]
To the court’s questions about why the respondents had only
reacted at the very last
minute to the application, counsel stated
that the reasons were canvassed in the draft report. An opportunity
was requested for
the matter to be stood down further so that the
respondents’ affidavit and the draft report could be placed
before the court.
The respondents intended to seek a postponement of
two weeks to allow them to get their affairs in order and would
tender the costs
thereof.
[15]
To this, the applicant’s counsel pointed out that the
respondents were attempting
to revisit a matter that had already been
finalised, as reflected in Pakati J’s order. There were indeed
numerous families
staying inside the buffer zone. The respondents’
failure to comply with either the agreement or the order had created
such
a situation. There could be no prejudice were the contempt
application to be to be granted because the respondents would be
afforded
an opportunity to purge their contempt; the timeframe
envisaged in terms thereof would allow them to challenge the
underlying agreement
should they be so advised. Counsel contended
that there would be no point in granting a postponement. The past
conduct of the respondents
demonstrated their lack of cooperation
with the applicant; this would simply continue unabated. The
applicant was presently at
risk of losing its mining licence because
it could not conduct proper mining operations. Any blasting
activities would place the
families staying inside the buffer zone in
physical danger.
[16]
Making a final attempt to persuade the court, the respondents’
counsel raised the
possibility of a rule
nisi
, which would
grant the relief sought by the applicant but also permit the
respondents an opportunity to place their affidavit and
the draft
report before court. The applicant’s counsel objected to such
an approach, saying that it would hardly take the
matter further.
Issues
to be decided
[17]
Whatever the issues might have been in relation to the lease
agreement, or the agreement
concluded by the parties on 9 September
2021, the correct issues before the court were those strictly in
relation to the contempt
application. There might well be merit to
the respondents’ intended challenge to the above agreements;
then again, there
might not. It was of critical importance, however,
to distinguish between the two sets of proceedings.
[18]
Ultimately, after considering the requirements for an order for
committal, the court was
required to determine whether the
respondents’ non-compliance with the order of Pakatai J, made
on 31 October 2023, was wilful
or
mala fide
. A brief overview
of the relevant principles follows.
Legal
framework
[19]
Generally,
all orders of court, whether correctly or incorrectly granted, must
be obeyed until properly set aside.
[1]
This is a principle that is fundamental to the rule of law and is
enshrined in section 165(5) of our Constitution.
[2]
The role of the judiciary as the third branch of government is
indispensable for individual liberty.
[3]
Non-compliance with an order of court undermines not only the
judiciary’s role but also disturbs, sometimes imperceptibly,
at
other times blatantly, the democratic values of dignity, equality,
and freedom, upon which our constitutional democracy is built.
Contempt of court proceedings must be considered within such a
context.
[20]
The requirements for issuing an order of committal for contempt of
court are well-known.
The commentary in
Herbstein & Van Winsen
indicates that an applicant must show:
‘
(a)
that an order was granted against the respondent;
(b)
that the respondent was either served with the order or informed of
the grant of the order and could
have no reasonable ground for
disbelieving that information; and
(c)
that the respondent has either disobeyed the order or neglected to
comply with it.’
[4]
[21]
In
Fakie
NO v CCII Systems (Pty) Ltd
,
[5]
Cameron JA summarized the nature of contempt proceedings as follows:
‘
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with
court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an “accused person”,
but is entitled to
analogous protections as are appropriate to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice;
non-compliance; and wilfulness and
mala fides
) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and
mala fides
. Should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and
mala fide
, contempt will have
been established beyond reasonable doubt.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on
a balance of probabilities.’
[6]
The
above principles comprised the basic framework within which the
matter was assessed. This is set out in the discussion that
follows.
Discussion
[22]
There was
no dispute about the existence of the order made by Pakati J on 31
October 2023. There was no dispute that there was proper
service
thereof on the respondents. There was also no dispute, on the
available evidence, that the respondents failed to comply
therewith;
this was common cause at the hearing.
[7]
Consequently, wilfulness could be inferred and an evidential burden
rested on the respondents to establish a reasonable doubt as
to
whether such non-compliance was wilful or
mala
fides
.
[8]
[23]
The glaring weakness in the respondents’ position was that
there was simply no evidence
before the court to discharge the
evidential burden by the time that the matter was heard. Irrespective
of how sincere their counsel’s
submissions might have been, the
respondents simply failed to present any evidence that could have
created the reasonable doubt
necessary to have upset the inference of
wilfulness or
mala fides
regarding non-compliance. If the
respondents had only become aware of the contempt proceedings at the
very last minute, then their
conduct could possibly have been
condoned. This was, however, not the case. The contempt application
was served on the respondents
on 4 June 2024, some eight weeks
prior to the hearing. The respondents notified the applicant of their
intention to oppose
the proceedings on 26 June 2024. From the
submissions made by counsel, it was apparent that the respondents
gave instructions on
how to deal with the matter less than 24 hours
before the hearing. For an organ of state, the most senior manager in
its administration,
and the most senior of its public office bearers,
this was entirely unacceptable.
[24]
In terms of
section 165(4) of the Constitution, organs of state are enjoined to
assist and protect the courts to ensure their independence,
impartiality, dignity, accessibility, and effectiveness.
Non-compliance with a court order amounts to an abject failure to
fulfil
such a duty. A period of almost seven months had lapsed since
the date of the order in question before the applicant launched its
contempt application;
[9]
a
further period of eight weeks had lapsed before the hearing itself.
At the very least, a single, brief affidavit could have been
filed
prior to the commencement of the hearing on 30 July 2024, accompanied
by such confirmatory affidavits as might have been
required, to
explain in concise and simple terms why the respondents had not
complied with the order and why a postponement was
necessary. The
respondents’ failure to place any evidence whatsoever before
the court in proceedings such as these was to
heap contempt upon
contempt. The court could only decide the matter on the papers before
it. The inference of wilfulness, if not
mala
fides
,
was irresistible.
[25]
The
respondents have also requested reasons for why their notices in
terms of rule 6(5)(d)(iii) and rule 35(12) were not considered.
The
plain answer is that these were not before the court; they had not
been filed by the time that the matter was called. Even
if they had
been filed, it is doubtful that, in the absence of evidence, they
could have served to establish the reasonable doubt
necessary to
upset the inference.
[10]
[26]
Furthermore, the respondents requested reasons for why the
application for a postponement,
made from the bar, was refused. The
respondents also wished to know why the matter was not stood down
until the end of the roll
to allow them to have brought a substantive
postponement application.
[27]
In
Persadh
and Another v General Motors South Africa (Pty) Ltd
,
[11]
Plasket J held as follows:
‘
The following
principles apply when a party seeks a postponement. First, as that
party seeks an indulgence he or she must show good
cause for the
interference with his of her opponent’s procedural right to
proceed and with the general interest of justice
in having the matter
finalised; secondly, the court is entrusted with a discretion as to
whether to grant or refuse the indulgence;
thirdly, a court should be
slow to refuse a postponement where the reasons for the applicant’s
inability to proceed has been
fully explained, where it is not a
delaying tactic and where justice demands that a party should have
further time for presenting
his or her case; fourthly, the prejudice
that the parties may or may not suffer must be considered; and,
fifthly, the usual rule
is that the party who is responsible for the
postponement must pay the wasted costs.’
[12]
[28]
The set of principles described above were entirely apt in the
present matter. In the absence
of evidence from the respondents,
showing good cause and explaining why they could not proceed, the
respondents were immediately
at a significant disadvantage. An
informal application made by counsel from the bar was not good
enough. To have tendered the costs
of a postponement, moreover, was
not the antidote that the respondents required. If the prejudice that
the applicant would continue
to suffer in relation to its mining
activities was considered, as well as the risk that confronted
families staying within the
buffer zone, then there was a reasonable
basis upon which to have refused the indulgence sought.
[29]
As to why the matter could not have been stood down in the
circumstances, the question
is akin to asking why a football match
could not be suspended after kick-off to allow a team to find a
proper striker and a goalkeeper.
The team was required to have been
ready when the whistle was blown. There was no suggestion in the
present matter that the applicant
set it down for hearing unfairly.
There was also no suggestion that the respondents had insufficient
time to answer the case brought
against them. To attempt to persuade
the court to allow a final opportunity to prepare a substantive
postponement application,
after the commencement of the hearing and
in contempt proceedings such as these where an organ of state and its
leadership were
the respondents, was, quite frankly, outrageous. If
any application was to have been brought in this regard then it ought
to have
been done on reasonable notice to the applicant and the
court; at the very least, it ought to have been brought prior to the
start
of the proceedings.
Relief
and order
[30]
Ultimately, the court was satisfied that the applicant had met the
requirements for an
order of committal to have been made. The harsh
effects thereof were ameliorated by affording the respondents an
opportunity to
purge their contempt. The intervening period would
also have allowed the respondents a chance to challenge the
underlying agreements
and to seek to suspend the implementation of
the order for committal, alternatively as might have been advised.
[31]
Regarding costs, the order on an attorney and client scale reflected
the court’s
displeasure with (and disapproval of) the
respondents’ conduct. Enough has been said about that already.
[32]
In the circumstances, the following order was made:
1.
The first, second and third respondents be and are hereby declared to
be in contempt of court by
failing to comply with the order of the
above Honourable Court granted under case number 3136/2023 on 31
st
October 2023.
2.
A warrant of arrest be and is hereby authorised committing the second
and third respondents to
imprisonment for contempt of court for a
period of 30 calendar days, which warrant is wholly suspended for a
period of one (1)
year on condition that the respondents, jointly and
severally, purge their contempt as follows:
2.1
the respondents are directed to maintain the additional buffer zone
along the
perimeter of the applicant’s mining rights upon the
property Remainder of Portion 8 (Portion of Portion 3) of the Farm
Tempe
No 240, owned by the Provincial Government, Eastern Cape, and
the property Remainder of Portion 2 of the Farm Brakkefontein No 240,
Division Albany, and which is described in the diagram attached to
the memorandum of agreement marked “FA15” and annexure
“MC2” to the main application;
2.2
the respondents are directed to demarcate the buffer zone depicted at
coordinates
F, G, H, J and K in annexure “MC2”, clearly
with a fence line and/or a line of large painted boulders located no
more
than 50m from one another within 15 court days of the granting
of this order;
2.3
the respondents are directed to institute eviction proceedings to
remove persons
to be found on the property Remainder of Portion 8
(Portion of Portion 3) of the Farm Tempe No 240 and the property
Remainder of
Portion 2 of the Farm Brakkefontein No 243, Division
Albany, and the area generally and commonly known as Mayfield Farm,
district
of Makhanda, in terms of the relevant legislation, within 15
court days of the granting of this order;
2.4
the respondents are directed to apply for an interdict from the above
Honourable
Court, as might be advised, within 15 court days of the
granting of this order, to:-
2.4.1
prevent the unlawful occupation, or invasion, of the property
Remainder of Portion 8 (Portion
of Portion 3) of the Farm Tempe No
240 and the property Remainder of Portion 2 of the Farm Brakkefontein
No 243, Division Albany,
and the area generally and commonly known as
Mayfield Farm, district of Makhanda, by any persons, and;
2.4.2
prevent the erection, completion, and/or occupation of any structure
on the property Remainder
of Portion 8 (Portion of Portion 3) of the
Farm Tempe No 240 and the property Remainder of Portion 2 of the Farm
Brakkefontein
No 243, Division Albany, and the area generally and
commonly known as Mayfield Farm, district of Makhanda, by any
persons, including
the erection, completion, and/or occupation of
municipal infrastructure relating to roads, electricity supply, and
water and sewage
supply and services.
3.
Should the respondents fail to purge their contempt in any manner as
set out in paragraph 2 of this order,
the applicant may approach the
above Honourable Court, with papers duly supplemented, if necessary,
to implement the committal
of the second and third respondents.
4.
The respondents are to pay the applicant’s costs on a scale as
between attorney and client, jointly
and severally, the one paying
the other to be absolved.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the applicant:
Adv
Coutts
Instructed
by:
De
Jager & Lordan Inc.
2
Allen Street
MAKHANDA
Tel:
046 622 2799
Email:
stuart@djlaw.co.za
Ref:
SA Tarr/cb/M498
For
the respondent:
Adv
Masiza
Instructed
by:
McWilliams
& Elliot
152
Cape Road
Mill
Park
GQEBERHA
Ref:
AHlongwane/W95708
Email:
aandrea@mcwilliams.co.za
wade@mcwilliams.co.za
c/o
N N Dullabh & Co
5
Bertam Street
MAKHANDA
Ref:
Mr Dullabh
Email:
naran@dullabhs.co.za
Date
of request for reasons:
12
August 2024.
Date
of delivery:
29
August 2024.
[1]
AC Cilliers (et al),
Herbstein
and Van Winsen:
Civil
Practice of the High Courts and the Supreme Court of Appeal of South
Africa
(Jutastat e-publications, 5ed 2009), ch38-p1110.
[2]
Section
165(5) provides that ‘An order or decision issued by a court
binds all persons to whom and organs of state to which
it applies.’
[3]
GE
Devenish, ‘Constitutional Law’,
LAWSA
(Vol 5 Part 3, 2ed, LexisNexis Butterworths, 2004), at paragraph
285.
[4]
AC
Cilliers (et al), n 1 above. The learned writers referred to
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968 (2) SA 517
(C), at 522;
Culverwell
v Beira
1992 (4) SA 490
(W), at 493D.
[5]
2006 (4) SA 326 (SCA).
[6]
At
paragraph [42].
[7]
Admittedly,
counsel for the respondents explained there were reasons for
non-compliance. This must, however, be distinguished
from whether
there was non-compliance in the first place.
[8]
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A), at 367;
Macsand
CC v Macassar Land Claims Committee
[2005]
2 All SA 469
(SCA), at 477.
[9]
The
order was made on 31 October 2023, the contempt application was
launched on 28 May 2024.
[10]
It
needs to be added that the contents of the notices in question
remain unknown. Unless they were misplaced in the registrar’s
office, they were simply never filed.
[11]
2006
(1) SA 455 (SECLD).
[12]
At
paragraph [13].