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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 22689/2024
In the matter between:
OTTERY SERVICE STATION (PTY) LTD
t/a SASOL OTTERY First Applicant
EAGLE CREEK INVESTMENT S 40 (PTY) LTD Second Applican t
And
COLD STONE TRADING AND INVESTMENT S
(PTY) LTD t/a SHELL OTTERY First Respondent
FAMPAR TRADING (PTY) LTD Second Respondent
SHIRAAZ ABOOBA CKER KALLA Third Respondent
MOHAMMED ZAIN KALLA Fourth Res pondent
THE MINISTER: MINERAL RESOURCES AND ENERGY Fifth Respondent
THE CONTROLLER: PETROLEUM PRODUCTS
(WESTERN CAPE PROVI NCE) Sixth Respondent
Heard: 20 December 2024
Delivered: Electronically on 13 January 2025
_________________________________________________________________
JUDGMENT
__________________________________________________________________
LEKHULENI J
Introduction
[1] There are two urgent applications which served before this Court on 20
December 2024. The first is an application by the applicants to declare the first to the
fourth respondents in contempt of this Court's order issued under the above case
number, which order was granted by Mthimunye AJ o n 2 December 2024. The
applicants seek an order that the third to the fourth respondents be committed to
prison for a period of two months, alternatively to such period as this Court may find
to be just and equitable in the circumstance s.
[2] In addition, the applicants seek an order that the two months committal order
against the third and fourth respondents be suspended for a period of one year on
condition that the third and fourth respondents forthwith comply with this Court's
order of 2 December 2024 . Furthermore, that the respondents must cease operating
the fuel retail service station on erf 4[...] in Ottery, Cape Town, Western Cape .
[3] The second application involves a counterapplication by the first to the fourth
respondents. They seek an order that the judgment and order issued by Mthimunye
AJ on 2 December 2024 be suspended under section 18(1) of the Superior Courts
Act 10 of 2013 (“the Superior Courts Act”). This suspension would remain in effect
for the duration o f any application for leave to appeal, and any leave to appeal that
may be granted. Additionally, the respondents seek an order that for the period in
which any application by the respondents for leave to appeal the aforesaid order of
this Court or any app eal that may be pending therein , the applicants ’ officials are
prohibited from directly engaging with or directly addressing any official of the
Department of Minerals and Energy or the Controller of Petroleum Products.
The Parties
[4] The first applicant is Ottery Service Station (Pty) Ltd with registration number
2005/041419/07, a private company duly registered in terms of the statutes of the
Republic of South Africa. It trades under the name Sasol Ottery at the corner of
Ottery and N ew Ottery Roads, Ottery East, Western Cape.
[5] The second applicant is Eagle Creek Investments 40 (Pty) Ltd, with
registration number 2003/030733/7, a private company duly registered in terms of
the statutes of the Republic of South Africa. Its main place of business is also
situated at the corner of O ttery and new Ottery Roads, Ottery East, Western Cape
Province. The second applicant underwent a name change and was previously
known as Cavalier Retail Centre Ottery (Pty) Ltd. In the main application and the
judgment of this Court, its name is still refl ected as being Cavalier Retail Centre
Ottery (Pty) Ltd.
[6] The first respondent is Cold Stone Trading and Investment s (Pty) Ltd, with
registration number 2020/705202/07 , a private profit company duly registered in
terms of the statutes of the Republic of South Africa. It trades under the name and
style of Shell Ottery at 1[...] New Ottery Road, Ottery East , Western Cape.
[7] The second respondent is Fampar Trading (Pty) Ltd, with registration number
2021/391592/07, a private profit company duly registered in terms of the statutes of
the Republic of South Africa. It owns erf 4[...] Ottery, situated at 1[...] New Ottery
Road, Ottery East, Western Cape Province, where Shell Ottery trades.
[8] The third respondent is Shiraaz Abooba cker Kalla , an adult businessman who
resides in Makhado, Limpopo Province. The Fourt h respondent is Mohammed Zain
Kalla , an adult businessman who similarly resides in Makhado, Limpopo Province.
The third respondent is the sole director of the second respondent. The third and the
fourth respondents are the co -directors of the first respondent.
[9] The third and the fourth respondents are cited in this application because they
are the representatives of the first and the second respondents, as the first and the
second respondents are juristic persons and can only act through natural persons
being its directors. As it will be demonstrated later in this judgment, in case the first
and the second respondents are in contempt of court, the directors of the first and
the second respondents are also in contempt of court. They are the persons who
must serve such sanction as may be imposed by the court.
[10] The fifth respondent is the Nation al Minister of Mineral Resources and
Energy . The applicants cited the Minister in her representative capacity as envisaged
in the Petroleum Product Act 120 of 1977 ("the PPA") and its regulations. The
Minister is the internal appeal authority envisaged in section 12A of the PPA.
[11] The sixth respondent is the Controller of Petroleum Products for the Western
Cape Province ("the Controller") . The Controller in this case is a functionary as
envisaged in the PPA and its regulation s and controls the allocati on of petroleum
resources in the Western Cape Province. The Controller is the authority that issues
site and retail licenses permitting license holders to trade in petroleum products. The
applicants seek no relief against the Minister and the Controller in this application.
The applicants contend that the Minister and the Controller were cited due to their
potential interest in this application. The Minister and the Controller did not file
opposing papers in this matter .
Background Facts
[12] The applicants are licensed operators of a fuel service station known as Sasol
Ottery. They have been licensed since 2007 but operated prior to that. In August
2024, the applicants discovered that despite their objections, the Controller of
petroleum products had issued site licen ces, as envisaged in the PPA, in favour of
the first and second respondents. Subsequen t thereto, the applicants immediately
lodged an internal appeal with the Minister of Mineral Resources and Energy in
terms of section 12A of the PPA against the Controller's decision to do so, which
appeal was subsequently supplemented. The internal appeal to the Minister remains
pending.
[13] The applicants relied on the judgment of th e Supreme Court of Appeal of
Gensinger and Neave CC and Others v Minister of Min eral Resources and Energy
and Others ,1 (“Gensinger ”) in which the Supreme Court of Appeal held that an
internal administrative appeal lodged with the Minister against the decision of the
Controller suspends the site and retail licence approved by the Controller. Based on
this decision and the fact that the first and the second respondents traded in
petroleum products nearby and in direct competition with the applicants, the
applicants brought an urgent application for an order interdicting and restraining the
first and second respondent s from operating a fuel retail service station on erf 4[...]
Ottery Cape Town pending the determina tion of the applicant's internal appeal to the
Minister in terms of section 12A of the PPA.
[14] The applicants' interdict application was heard on 28 October 2024. On 2
December 2024, Mthimunye AJ delivered a written judgment. In accord with the
Gensinger decision , the Court issued an order interdicting and restraining the first
and second respondents from operating a fuel retail service on erf 4[...] Ottery
pending the outcome of the internal appeal to the Minister of Mineral Resources and
Energy. On the same day the judgment was delivered, the first and second
respondents served upon the applicants an application for leave to appeal.
[15] Among others, in their application for leave to appeal, the respondents
emphasi sed the position they expressed during the hearing of the interdict
application: they believe that the Supreme Court of Appeal's decision in Gensinger is
legally flawed. Despite the court interdict, the first and second respondents continued
their trade in petroleum products, disregarding the court order. To this end, the
1 (223/2023) [2024] ZASCA 49 (15 April 2024).
applicants asserted that the respondents are in contempt of the court order as they
continue to trade in petroleum products despite the interim interdict restraining them
from doing so.
[16] The applicants stated that the first and second respondents, who are
controlled by the third and fourth respondents, filed an application for leave to appeal
against this Court's judgment and order. This establishes two key facts: first, that the
order against them is valid and, second, that the first to fourth respondents were
aware of the existence of the order. The applicants asserted that the order granted
by the court on 02 December 2024 was interim in nature and was not suspended by
the filing of the application for leave to appeal.
[17] On 05 December 2024, the applicants sent a letter to the respondents in
which the first to the fourth respondents were referred to section 18(2) of the
Superior Courts Act, which stipulates that unless a court in exceptional
circumstances decides otherwise, the operation of the interim order is not suspended
by an application for leave to appeal or a subsequent appeal. In the letter, the order
of this Court was quoted. The letter pointed out that this Court's order was an
interlocutory order that did not have the effect of a final judgment.
[18] The letter also demanded that both respondents comply with the court order
and stop trading immediately. The respondents were informed in the letter that
should they fail to adhere to the demand and fail to confirm by close of business on
Friday, 6 December 2024, that they will not trade pending the applicants' appeal, the
applicants would bring an urgent app lication for contempt of court and that if that
becomes necessary, costs would be sought on a punitive scale.
[19] Despite the letter being sent to the first to fourth respondents, it was ignored.
Meanwhile, the respondents submitted representations to t he Minister regarding the
applicants ’ appeal against the Controller's decision. These representations included
references to a case they had filed in the Constitutional Court to challenge the
Gensinger case. The applicants also attached receipts of fuel pu rchases on 09
December 2024 from the respondents to prove the ongoing trade despite the court
order. The applicants applied that the respondents be held in contempt and that the
court grant the relief sought in the notice of motion.
[20] On the other hand, t he respondents contended in their answering affidavit and
the counterapplication that the interdict granted by this Court is fully and unarguably
final in effect and particularly for its duration. The respondents further asserted that
the order granted by this Court is a final order and, at worst, an order that is final in
effect. The respondents stated that the interim interdict issued by the court on 2
December 2024 is final in nature and was suspended by the lodging of the appeal on
2 December 2024 and by their subsequent filing of leave to appeal at the
Constitutional Court.
[21] According to the respondents, the suspension of the order occurred
axiomatically in terms of section 18(1) of the Superior Courts Act, and this Court's
interim interdict cannot fall under section 18(2) of the Act. Simply put, the
respondents contended that the two applications for leave to appeal filed in this
Court and in the Constitutional Court suspended the order in terms of section 18(1)
of the Superior Courts Act. Whilst suspended, the respondents asserted that there
can be no contempt of court.
[22] In the counterapplication, the respondent s averred that the second and third
respondents have an exclusive supply and franchising agreement with Shell. On 11
December 2024, the respondents received a call from Shell advising them that Shell
had received notice from the Department that their petrol station had to cease
trading immediately. Shell did not immediately offer the respondents a copy of the
alleged notification from the Department but insisted that there was a court order
obliging the respondents to close the station and that Shell was not going to proceed
with the scheduled fuel deliveries. As a result, the forecourt was therefore compelled
to close on Thursday evening on 12 December 2024. The convenience store,
however, remained open but without vehicular traffic. This reduced sales to a trickle
than what they were supposed to be.
[23] The respondents expressed their objections to an email authored by the
applicants' representative, Ms Johnson, addressed to the Department's official,
Tsholofelo Moradi. In this correspondence, it was alleged that the respondents were
operating in violation of a court order. Ms Moradi brought this correspondence to
Shell's attention via an email dated 12 December 2024, which prompted Shell to stop
the fuel supply to the respondents. According to the respondents, thi s complaint to
Shell had the effect, if not the aim, of subverting and defeating the ends of justice
and successfully and/or illegally sabotaging the operation of section 18(1) of the
Superior Courts Act.
[24] To this end, in the counterapplication, the respondents seek an order that the
advice sent by email on 12 December 2024 by Tsholofelo Moradi to Shell advising
Shell of the court order against the respondents be declared unlawful , and of no
legal force and effect and to be disr egarded.
Principal Submissions by the Parties
[25] At the hearing of the application, Mr Van Den Bogert SC, the applicants'
Counsel, submitted that the interim interdict granted by this Court on 2 December
2024 was interim in nature and not final. Couns el asserted that the interim order was
granted pending the adjudication of an appeal to the Minister in terms section 12A of
the PPA. Pending the adjudication by the Minister o n the real dispute between the
parties, that is, the question whether there is a need for a further competing station in
the area where the applicants operate their fuel filling station, nothing prevents the
opposing respondents from approaching the court for a variation or an upliftment of
the interim interdict should circumstance ch ange.
[26] Mr Van Den Bogert submitted that the interdict remains open to alteration. It is
not final and definitive of the rights of the parties. Counsel submitted that its very
reading confirms that it is merely interlocutory in nature because it reads “Pending
the applicants' internal appeal to the minister of mineral resources and energy..."
Counsel submitted that o nce the appeal has been finalised , the interim interdict
ceases to operate.
[27] Regarding the contempt application, Mr Van Den Bogert asserted that it was
not disputed that the court order, being the subject of this contempt application, was
issued. Counsel further submitted that the four opposing respondents have notice of
the court order and have conceded that they have not complied with it. This,
therefore, places an evidential burden on the opposing respondents to establish that
the non -compliance with the court order was not wilful and mala fides. Counsel
submitted that the respondents are in contempt of the court order issued on 2
December 2024. Mr Van Den Bogert implored the court to grant the relief sought in
the notice of motion.
[28] On the other hand, Mr Savvas submitted that the order made by Mthimunye
AJ is not merely final in effect but clearly and indisputably a final interdict. Counsel
argued that the argument of the applicants that the order is interlocutory is to be
dismissed as irresponsible. This is because the court order is not pa rt of, attached to,
or emanates from any ongoing, pending, or envisaged litigation. Mr Savvas
submitted that the order is not interlocked with or intervene in any proceedings
cognisable under or by the Superior Courts Act or the Rules of Court.
[29] Mr S avvas explained that the interim order is not intermediatory to any active
court process and, importantly, there is no door, window or the slightest crack for any
subsequent court or forum to relook at, or reconsider, review or revisit the facts
which conc retise the court's order or judgment. Mr Savvas further asserted that the
order is fully final but subject to a simple factual resolutive condition that occurs
outside the jurisdiction of a court of law and over which a court of law has no control,
say, or involvement.
[30] It was Counsel's further submission that the order in question is not
interlocutory to anything, and therefore, the interdict ordered by Mthimunye AJ
became suspended when the application for leave to appeal was launched on 2
December 2024. In addition, Counsel asserted that the order became doubly
suspended when leave to appea l was lodged with the Constitutional Court. Mr
Savvas implored the court to dismiss the applicants' contempt application with a
punitive costs order.
[31] As far as the counterapplication is concerned, Mr Savvas impugned the
applicants' complaint in an em ail dated 12 December 2024 addressed by Ms
Johnson, the director of the first applicant to the Department of Mineral Resources
and Energy, that the first and second respondents were trading despite the interim
interdict restraining them from doing so. Acco rding to Mr Savvas, this led to the
Department sending an email to Shell's head office informing them to close the
respondents' sites. On 12 December 2024, Shell’s headquarters confronted the
respondents, demanding they shut down the filling station.
[32] Mr Savvas submitted that it was unlawful for the applicants to address a
complaint to the Department, which subsequently requested Shell to stop trading at
the respondents' site. In Mr Savvas' view, granting the counterapplication would
ensure that no one improperly influences officials in the Department without the
respondents being notified in advance. Counsel prayed that the court dismiss the
applicants ’ contempt application and grant the counterapplication.
Issues to be decided
[33] There are three critical questions for consideration in these two applications.
The first principal question that this Court is enjoined to consider is whether the order
granted by Mthimunye AJ on 02 December 2024 is an interim order as envisaged in
sectio n 18(2) of the Superior Courts Act or is it a final interdict envisaged in section
18(1) of the Act. Secondly, if the Court finds that the interim order is interim as
envisaged in section 18(2) of the Superior Courts Act, in that case, this Court must
determine whether the respondents are in contempt of court for acting in defiance of
the order.
[34] Thirdly, this Court is called upon to determine whether a declaratory order
sought in the counterapplication prohibiting the applicants from directly engagin g
with or directly addressing any official of the Department of Minerals and Energy or
the Controller of petroleum products should be granted pending the respondents ’
application for leave to appeal.
Relevant Legal Principles and Discussion
[35] This case focuses on the application of sections 18(1) and 18(2) of the
Superior Courts Act regarding the interim order granted on 2 December 2024. The
critical question is whether the order given by Mthimuny e AJ on 2 December 2024 is
an interim order as envisaged in section 18(2) or a final order as contemplated in
section 18(1) of the Superior Courts Act. Before I can consider this order's import
and effect, I find it appropriate to present the exact wording of the contested order
dated 2 December 2024, along with the relevant statutory provisions of the Superior
Courts Act. The pertinent part of the order states as follows:
“Pending the Applicants’ internal appeal to the Minister of Mineral Resources
and Energy in terms of section 12A of the Petroleum Products Act 120 of
1977, the first and second respondents are interdicted and restrained from
operating a fuel retail service station on erf 4[...], Ottery, Cape Town, Western
Cape, situated at 1[...] New Ottery, Western Cape until the final determination
by the Minister.”
[36] The relevant part of section 18 of the Superior Courts Act provides as follows:
“Suspension of decision pending appeal
(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.”
[37] As discussed above, at the hearing of thi s application, the applicant's
Counsel, Mr Van Den Bogert, submitted that the order quoted above is an interim
order in terms of section 18(2). Mr Van Den Bogert submitted that the order in the
main judgment makes it clear that it is interim in nature. On the other hand, Mr
Savvas submitted that an interim interdict, which is not granted pending another
court application, is final in effect.
[38] The argument of Mr Savvas seems to be that where a court will probably not
reconsider the interim interdict, i t is final in effect. The respondents' argument also
proposes that it must be the court that finally decides the dispute between the
parties, and it cannot be the Minister, as in this case. The respondents' argument
further suggests that if the determinati on of the right of the parties is contingent on
an administrative functionary, the interdict granted pending such determination is
final in effect.
[39] Against this backdrop, I turn to consider the first primary question, whether the
order quoted above is final or interim in nature and thereafter the other disputed
issues raised above.
Is the order dated 2 December 2024, interim or final in effect?
[40] Central to this matter is the interpretation of the court order issued by
Mthimunye AJ on 02 December 2024. Specifically, the question at hand is whether
the order is final in effect or interim, as envisaged in sections 18(1) and 18(2),
respectively, of t he Superior Courts Act. In Firestone South Africa (Pty) Ltd v Enticer
AG,2 Trollip JA, observed that t he basic principles applicable to construing
documents also apply to the construction of a court's judgment or order: the
court's intention is to be ascertained primarily from the language of the judgment or
order as construed according to the usual, well -known rules. Thus, as in the case of
2 1977 (4) SA 298 (A) at 304D.
a document, the judgment or order and the court’s reasons for giving it must be read
as a whole to ascertain its intention.
[41] In Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa
Limited and others ,3 it was held that the starting point is to determine the manifest
purpose of the order. While i n Natal Joint Municipal Pension Fund v Endmen
Municipality,4 Wallis JA , described the process of interpretation as involving a unitary
exercise of considering language, context and purpose. It is an objective exercise
where, in the face of ambiguity, a sensible interpretation is to be preferred to one
which undermines the purp ose of the document or order.
[42] Section 18 of th e Superior Courts Act regulate s the suspension of decisions
pending appeal proceedings. In terms of section 18(1) , the execution of a judgment
having a final effect is automatically suspended upon the noting of an appeal, with
the result that, pending the appeal, the judgment cannot be carried out and no effect
can be given thereto, except with the leave of the Court in terms of section 18(3),
which granted the judgment.5 However, i f the order granted is an interim order as
envisaged in section 18(2), there would be no auto matic suspension of the order
pending an appeal.6
[43] The purpose of this rule as to the suspension of a j udgment on the noting of
an appeal is to prevent irreparable damage from being done to the intending
appellant, either by levy under a writ of execution or by execution of the judgment in
any other manner appropriate to the nature of the judgment appealed from.7 In
determining whether the order is final, it is essential to bear in mind that not merely
the form of the order must be considered but also, and predominantly, its effect.8 The
3 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited and Others 2013 (2)
SA 204 (SCA) para 13.
4 2012 (4) SA 593 (SCA) para 18.
5 South African Motor Industry Employers’ Association v South African Bank of Athens Ltd 1980 (3) SA
91 (A) at 96H.
6 Cash Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees 2024 (4) SA 141 (WCC) at
para 42.
7 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd (supra) at 542D
and 545A .
8 South African Motor Industry Employers’ Association v South African Bank of Athen s Ltd (supra) at
96H.
filing of an application for leave to appeal would suspend the order if it were a
section 18(1) type order, that is, if it is a final order or an interim order which is final in
effect.
[44] In South Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty) Ltd,9 the Court observed that in a wide and general sense, the term
'interlocutory' refers to all orders pronounced by the Court upon matters inc idental to
the main dispute, preparatory to, or during the progress of the litigation. However,
orders of this kind are divided into two classes: ( I) those which have a final and
definitive effect on the main action; and (ii) those known as 'simple (or pur ely)
interlocutory orders' or 'interlocutory orders proper', which do not.
[45] The Court held that statutes relating to the appealability of judgments or
orders that use the word 'interlocutory' or other words of similar import refer to simple
interlocutory orders. In other words, it is only in the case of simple interlocutory
orders that the statute is read as prohibiting an appeal or, making it subject to the
limitation of requiring leave. Final orders, including interlocutory orders having a final
and definitive effect, are regarded as falling outside the purview of the prohibition or
limitation.
[46] Reverting to the present matter, it is common cause that the order made on 2
December 2024 was granted pending the determination of an appeal to the Minister
in terms of section 12A of the PPA. The interdict, in my view, remains open to
alterations. The re is no dispute between the parties that the interim interdict granted
by the court on 2 December 2024 will only operate pending a decision to be made by
the Minister of Mineral Resources and Energy in respect of the appeal that the
applicants lodged in t erms of the provisions of the PPA. The appeal can be decided
at any time by the Minister. In that appeal, the Minister will determine whether there
is a need for another competing filling station to trade in proximity to the applicants'
filling station.
9 1977 (3) SA 534 (AD) at 549F – 551H.
[47] Once the appeal has been adjudicated upon, whether it is for or against the
applicants, the interdict will come to an end and will have no further effect anymore.
Therefore, the interdict has the nature of an interim order, and the submission by the
respondents that it has the effect of a final judgment is mistaken and cannot be
correct. Notably, the judgment and the reasons in the interdict application confirms
the interim nature of the order sought and granted. As previously stated, the order is
self-evidently of an interim nature. The wording and effect of the order do not have
the effect of a final order in its reading. Nor did the court, in its judgment, state that
the order is final. As such, it is an interlocutory order and falls squarely within t he
purview of section 18(2) of the Superior Courts Act.
[48] Finally, on this point, the respondents' Counsel endeavoured to argue that
where a court will not reconsider the interim interdict as it depends upon an
administrative functionary's decision, s uch an order is final in effect. Mr Savvas
posited that an interim interdict, which is not granted pending another court action, is
final in effect. Counsel suggested that it must be the court that finally resolves the
dispute between the parties; it canno t be the Minister, as in this case. This argument,
in my view, is erroneous and misses the point. In a wide and general sense, the term
"interlocutory" refers to all orders pronounced by the Court, upon matters incidental
to the main dispute, preparatory t o, or during the progress of, the litigation.10 The
pending appeal before the Minister concerns the central dispute between the parties.
The interdict in this case is intended to preserve the status quo while awaiting the
Minister's decision.
[49] Significantly, I find the decision of the full Court in Helen Suzman Foundation
and Another v Minister of Home Affairs ,11 particularly pertinent and on point to the
disputed issues in this matter. In that case, the court considered an application by
the Helen Suzman Foundation and the Con sortium for Refugees and Migrants in
South Africa in which they sought a declarator that an interim order that the court
earlier granted was interim in nature as contemplated in section 18(2) of the Superior
Courts Act.
10 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd (supra) at 549 F.
11 2023 JDR 4339 (GP) .
[50] Amongst others, the interim order in that case provided that pending the
conclusion of a fair process and the Minister of Home Affair ’s further decision within
12 months, it was directed that the existing Zimbabwean Exemption Permit shall be
deemed to rema in valid for the next 12 months and that no holder of the exemption
would be arrested , ordered to depart, or be detained for purpose s of deportation in
terms of section 34 of the Immigration Act and for reasons related to him or her not
having a valid exemption certificate in his or her passport .
[51] The Minister’s opposition to the application for a declaratory order was on the
basis that although the order was couched as an interim order, its effect was that of a
final order as envisaged in section 18(1) . The Ministe r contended that the order was
final in nature and that the Minister was entitled to appeal it.
[52] The full court was required to consider whether the temporary order was
interlocutory in nature as contemplated in Section 8(2) of the Superior Courts Act
and, if so, whether the court should issue a declarator that should provide certainty
as to the legal position. The court considered the matter and stated as follows:
“[25] It is not correct that the requisites for a final order apply in respect of this
court's interim order. The judgment made it clear that the order that is being
granted is aimed at preserving the status quo. The requisites for a final order
as stated in the Zweni judgment do not apply to the judgment and order given
by this Court. The r ights of the ZEP holders as stated in the order are not
definitive, firstly, in that they are subject to the determination by the Minister
and may be altered when the Minister has conducted a fair hearing as
contemplated in the interim order; secondly, the existing ZEPs shall be
deemed to remain valid for the next (12) twelve months pending the
conclusion of a fair process; thirdly, the Minister's decision has been set aside
temporarily until he concludes a fair process within 12 months; and fourthly,
the Minister's powers to act in terms of section 31(2)(b) of the Immigration
Act have not been usurped.
[26] For these reasons, it is found that the Minister's contention that the
interim order has the effect of a final judgment is rejected. We consider below
whether a declarator compelling the Minister to comply with the interim order
pending any appeals contemplated by the Minister should anyway be granted.
[27] The order is self-evidently of an interim nature. The wording of the order
is not having an effect of a final judgment in its reading. Nor did the court in its
judgment state that the order is final. The Court deemed a period of 12
months sufficient for the Minist er to complete a fair process.” (footnotes
omitted)
[53] Similarly, in this case, the Minister will determine the dispute between the
parties. Mthimunye AJ’s judgment indicated that the order is of an interim nature. The
reasons articulated for the order, along with the order itself, clearly indicate that it is
of an interim nature. It does not dispose of all the issues between the parties. As
such, it is an interlocutory order and falls squarely within the purview of section 18(2)
of the Superior Courts Act. The contention that this order has the effect of the final
judgment is untenable and falls to be rejected. The respondents' application for leave
to appeal filed in this Court on 2 December 2024 and in the Constitu tional Court on
17 December 2024 did not suspend the operation of the interim interdict issued by
this Court. I now turn to considering the second disputed issue.
Are the respondents in contempt?
[54] It is not in dispute that the court order, being the subject matter of this
contempt application, was issued. It is also not in dispute that the four respondents
have received notice of the court order and have not complied with it. The
respondents defied the court order. Notwithstanding the court interdict, they
continued to trade in petroleum products. More so, I agree with the views expressed
by the applicants' legal representative that the fact that the first and the second
respondents, who are controlled by the third and fourth respondents, launched an
application for leave to appeal against the judgment and order of this court,
establishes two facts, namely, that the order exists and that the first to the fourth
respondents knew about the existence of the order.
[55] The defence raised by the responden ts for non -compliance with the court
order is that their counsel advised them that there is no case of contempt in this
matter and that the interdict granted by this court is fully and unarguably final in
effect . Furthermore, the respondent s asserted that the two applications for leave to
appeal that have been filed suspended the order in terms of section 18(1) of the
Superior Courts Act. Whilst suspended, the respondent contended that there can be
no contempt.
[56] I must stress that the a pproach and stance adopted by the respondents and
their C ounsel to ignore the order of this court is very worrying and disturbing to say
the least. The advice of Counsel cannot supersede or prevail over a court order. It is
a dangerous thing for a litigant to ignore an order of court wilfully.12 More so, i t is a
crime to unlawfully and intentionally disobey a court orde r. Court orders must be
obeyed until they are set aside, or chaos may result if people are allowed to
disregard them without consequences.13
[57] Section 165(5) of the Constitution makes orders of court binding on all
persons (including the respondent s) to whom and organs of state to which it
applies.14 These obligations must be fulfilled. It is crucia l to uphold the integrity of the
judicial system and ensure that contempt of a court order is not tolerated, as such
conduct not only threatens the rule of law but also erodes public trust in the judiciary.
Discernibly, continual non -compliance with court orders imperils judicial authority.15
Disregarding judicial authority should be unequivocally condemned and denounced
in the strongest terms possible.
[58] In my opinion, if the respondents held a steadfast belief that the order issued
by the court was definitive in its effect, they should h ave pursued a declaratory order
from this court to affirm that understanding. I am of the firm vie w that it was not open
12 In Bezuidenhout v Patinise Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 228F -230A , Froneman J
stated that an order of a court of law stands and must be obeyed until set aside by a court of
competent jurisdiction.
13 Culverwell v Beira 1992 (4) SA 490 (W) at 494A -E.
14 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at para 26.
15 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC) at para 48.
for the respondents to flagrantly disregard the court order pursuant to the view they
held that it was final in effect. This outright repulsive position is simply unacceptable.
Contempt of court is inimical to the rule of law and strikes at the heart of the
constitutional state.
[59] Most significantly, in Minister of Home Affairs and Others v Somali Association
of South Africa and Another,16 the Supreme Court of Appeal emphasised that there is
an unqualified obligation on every person against, or in respect of, whom an order is
made by a court of competent jurisdiction to obey it unless and until that order is
discharged. The court observed that it cannot be left to the litigants to themselves
judge whether or not an order of court should be obeyed. There is a constitutional
requirement for complying with court orders, and judgments of the courts cannot be
any more explicit on that score.
[60] Generally, an applicant seeking an order for contempt of court must prove that
(a) an order was granted against the alleged contemnor, ( b) that the alleged
contemnor was served with the order or had knowledge of it, ( c) that the contemnor
had failed to com ply with the order , and (d) the non -compliance must be wilful and
mala fide.17 Once these elements are established, wilfulness and mala fides are
presumed against the respondent s, who then attracts an evidentiary burden to
negate these presumptions.18 Should the respondent s fail to discharge this burden,
contempt will have been established.
[61] In relation to onus , a distinction is drawn between applications where the
respondent’ s incarceration is sought and coercive contempt applications .19 Where
sanction for committal to prison is sought, the standard of proof must be beyond a
reasonable doubt .20 However, in civil mechanisms designed to induce compliance
16 2015 (3) SA 545 (SCA) para 48; S v Mamabolo (E TV and Others Intervening) (2001 (1) SACR 686
(CC) at para 24.
17 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others (supra) at para 73; Fakie N.O v
CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) .
18 Snowy Owl Properties 284 (Pty) Ltd v Celliers and Another (1295/2021) [2023] ZASCA 37 (31
March 2023) para 22.
19 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others (supra) para 67.
20 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at paras 35 – 36.
short of committal to prison, such as is the case here, proof on a balance of
probabilities is sufficient .21
[62] Evidently, the existence of the order, the respondents' knowledge thereof, and
non-compliance is essentially undisputed in this matter. The respondent s bore the
duty to show that their default was not mala fide. The respondents rely solely on their
Counsel's advice that the interim interdict is final in effect and that the filing of the
leave to appe al suspended the order.
[63] As correctly pointed out by Mr Van Den Bogert, what is conspicuously absent
from the answering affidavit of the opposing respondents is any version of the
respondents' own interpretation of this court's order. The third and f ourth
respondents are directors of the first and second respondents. They are astute
businessmen. Indeed, they understood the import of the interim order , hence they
appealed against it . Based on a simple reading, this order is interlocutory and will
only operate for an interim period. Its interpretation requires no rocket science. It is
plain, and it is clear.
[64] It is not excusable for the respondents to rely on Counsel's advice to ignore a
court order, particularly where the advice is not reasonably sustainable. From the
totality of the evidence placed before th is Court, I am satisfied that the respondents
are in contempt of the court order issued on 2 December 2024.
[65] I am mindful that the first and the second respondents are juristic persons.
However, a director of a company who, with full knowledge of an order of court
against the company, causes the company to disobey the order is himself guilty of
contempt of court. By his act or omission, such a director aids and abets the
company to be in breach of the court order against the company.22 Thus, the third
and fourth respondents are guilty of contempt of court .
21 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 17.
22 Minister of Water Affair s and Forestry v Scillonian Gold Mine Co Ltd 2006 (5) SA 333 (W) at para
16.8.
[66] Even if I am wrong in my interpretation of the order that it was interim in
nature, based on the Gensinger judgment, I am of the view that the retail license
issued by the Controller to the respondent s was suspended when the applicants
lodged an appeal aga inst the decision of the Controller to issue that license. The
respondents' disagreement with the decision in Gensinger does not grant them the
right to ignore the court order and continue trading. It is important to note that
Gensinger was decided by the Supreme Court of Appeal, which is the highest court
of appeal in matters other than constitutional issues. Accordingly , that court’s
decision must be respected.
[67] Pursuant to the Gensinger case, w hile the applicants ’ appeal is pending
before the M inister , the decision to grant the licence to the respondents cannot be
executed, and no effect can be given to it. Simply put, the suspension of the order by
the lodgement of appeal means that the respondents cannot trade until the Minister
makes a final determination.
[68] The argument Mr Savvas presented during the hearing of this application —
that the Supreme Court of Appeal erred in its judgment in Gensinger by allowing third
parties, such as the applicants, to appeal against a decision m ade by the
Controller —is fundamentally flawed. Section 12A(1) of the PPA provides that 'any
person directly affected by a decision of the Controller of petroleum products may ,
notwithstanding any other rights that such a person may have, appeal to the Minister
against such decision.'
[69] Evidently, the Controller's decision to issue a retail licence to the respondents
will directly affect the commercial rights or interests of the applicants as
contemplated in s ection 12A of the PPA. Simply put, t he sale of petroleum products
at the applicants' outlets will be negatively affected.
Should the respondents ’ Counterapplication be granted?
[70] Pursuant to the finding made hereinabove, I deem it unnecessary to deal with
the counterapplication in detail. In my view, the finding above disposes the
counterapplication. In any event, I hold the view that the counterapplication was
bound to fail as the respondents sought declaratory orders and an interdict without
dealing with the trite requirements of an interdict.
Costs
[71] The applicants' legal representative has requested that the court order the
respondents to pay costs on an attorney -and-client scale to express its displeasure
with the respondents' contemptuous conduct. It is a trite that a court considering an
order of costs exercises a discretion which must be exercised judicially.23 In my view,
the respondents flagrantly disregarded a court order which was very clear and easy
to understand. The respondents also disregarded the Gensi nger case which
informed the granting of th e interim interdict. Such conduct must be denounced.
[72] A deliberate failure to comply with a court order issued in civil proceedings is
deemed contempt and constitute s a criminal offense. This Court must indeed display
its displeasure with the contemptuous conduct of the respondents. In my view, a cost
order on an attorney and client scale is fitting in this matter.
[73] Finally, I have noted with deep concern the unsavoury diction used by the
respondents against the applicants in the ir answering affidavit and in their Counsel's
heads of argument. In my opinion, t he unpleasant diction in these documents is
extremely unfort unate and has no place in court documents.
Order
[74] In the result, the following order is granted:
74.1 The application is heard on an urgent basis , and the applicants’
noncompliance with the Rules of Court insofar as it pertains to the time
periods and methods of service is condoned as envisaged in Rule 6(12) of the
Uniform Rules of Court.
23 Ferreira v Levin NO and Others; Vreyenhoek and Others v Po well NO and Others 1996 (2) SA 621
(CC); Motaung v Makubela and Another, NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) at 631A.
74.2 It is declared that the first, second, third and fourth respondents are in
contempt of this Court's order issued under the above case number granted
by Mthimunye AJ on 02 December 2024.
74.3 The third and fourth respondents are committed to prison for a period
of (03) three months.
74.4. The order in 74.3 above , is suspended for a period of one year on
condition that:
74.4.1 The first and the second respondents forthwith comply with this
court's judgment and order of 2 December 2024 , and
74.4.2 The first and the second respondents immediately cease to
trade and desist from operating fuel retail services station on erf 4[...]
Ottery, Cape Town, Western Cape Province , situated at 1[...] New
Ottery R oad, O ttery E ast, Western Cape Province.
74.5 Should the first and the second respondents fail to comply with this
order within a period of 24 (twenty -four) hours from the time of the granting of
this order, the Registrar of this Court is authorised to issue the required
warrants for the arrest of the third and fourth respondents, and the members
of the South African Police Services shall be authorised to arrest the third and
fourth respondents and hand them to the relevant prison authorities of the
Department of Correctional Services, who shall detain them in prison to serve
their sentence as envisaged in order 74.3 above.
74.6 The first to fourth respondents shall pay the cost of this application and
the counterapplication jointly and severally, one paying the other to be
absolved on an attorney and client scale.
__________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant s: Advocate Van Den Bogert
Instructed by: Duvenhage Attorneys - Pretoria
For the first, second , third and fourth Respondents: Advocate Savvas
Instructed by: Murray Kotze & Associates