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
______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING J
[1] This is an application for leave to appeal against the judgment and order handed
down in an application for the respondents to be declared in contempt of court. The
parties will be described in the same way as they were previously.
[2] The context of the matter concerns an agreement reached between the parties
on 9 September 2021 in relation to the enforcement and maintenance of a buffer zone
between the applicant’s kaolin mining o perations and informal settlements that have
developed on adjacent land. On 31 October 2023, Pakati J granted an order that
directed the respondents to comply with the agreement. It was not disputed that , on 12
December 2023, the sheriff served a copy of the order on each of the respondents.
Despite the applicant’s requests for compliance, an inspection in loco , and the
respondents’ promise to furnish a report on the implementation of the order, nothing
came about. This prompted the applic ant to institute contempt proceedings on 28 May
2024. The matter eventually reached the uncontested opposed roll, culminating, on 30
July 2024, in the decision that forms the subject of the present application.
[3] A full description of the background facts and the proceedings that took place on
30 July 2024 appears in the judgment of the court. This will not be repeated, save to
remark that the conduct of the respondents was entirely unacceptable.
[4] For purposes of the present matter, the respondents relied on several grounds of
appeal during argument. These comprised the following: (a) the applicant’s failure to join
the second and third respondents in their personal capacities, and the applicant’s lack
of standing; (b) the failure to establish wilful disobe dience and mala fides ; (c) the
imposition of unreasonable or conflicting time periods for compliance; (d) the failure to
have transferred the matter to the opposed motion court roll ; (e) the failure to have
permitted the respondents to bring a postponement application; and (f) the lack of a
proper basis for the award of costs on a punitive scale.
[5] Under 17(1)(a) of the Superior Courts Act 10 of 2013, leave to appeal may only
be given where a judge is of the opinion that the appeal would have a reasonable
prospect of success, or there is some other compelling reason why the appeal should
be heard. In S v Smith,1 the court held that more is required to be established than the
mere possibility of success, that the case is arguable on appeal, or that the case cannot
1 2012 (1) SACR 567 (SCA).
be categorized as hopeless. 2 The provisions of section of section 17(1)(a) ensure that
the threshold for the granting of leave is higher than what it was previously under the
Supreme Court Act 59 of 1959. In Pretoria Society of Advocates v Nthai,3 the court held
that there must now be a measure of certainty that another court will differ from the
court in relation to whose judgment leave to appeal is sought.4
[6] The present matter pertains to a judgment granted in relation to contempt of
court proceedings. The respondents focused, in that regard, on the Constitutional
Court’s decision in Matjhabeng Local Municipality v Eskom Holdings Ltd.5 This requires
closer examination.
[7] The Constitutional C ourt dealt with two applications for leave to appeal, each
involving a declaration to the effect that an official had been in contempt of court for the
disobedience of a court order, as well as the imposition of a period of imprisonment that
was wholly suspended. Nkabinde ADCJ reiterated, with reference to Pheko and others v
Ekurhuleni Metropolitan Municipality (Socio-Economic Rights Institute of South Africa as
amicus curiae) (No 2) ,6 the requirements for contempt of court. 7 The learned judge
stressed that, because the relief sought was committal, the criminal standard of proof
(beyond reasonable doubt) applied.8 Regarding whether non-compliance was wilful and
mala fide , this was held to mean that the official, personally, must have deliberately
defied the order; in other words, the official him - or herself, rather than the institutional
structures for which he or she is responsible, must have w ilfully or maliciously failed to
comply.9
2 At paragraph 7, with reference to S v Mabena 2007 (1) SACR 482 (SCA), at paragraph 22.
3 2020 (1) SA 267 (LP).
4 At paragraph 5, with reference to Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC), at paragraph 6.
5 2017 (11) BCLR 1408 (CC).
6 2015 (6) BCLR 711 (CC) (Pheko II), at paragraph [32].
7 The learned judge summarized these as: (a) the existence of an order; (b) the order must be duly
served on, or brought to the notice of, the alleged contemnor; (c) there must be non -compliance with the
order; and (d) the non-compliance must be wilful and mala fide. At paragraph [73].
8 Ibid.
9 At paragraph [76].
[8] Nkabinde ADCJ proceeded to deal with the question of non -joinder. It was
common cause that the officials in question were convicted and sentenced without
having been joined to the proceedings. The learned judge ob served that courts have an
inherent power to order the joinder of parties where necessary, even in the absence of a
substantive application to that effect. In that regard:
‘The law on joinder is well settled. No court can make findings adverse to any
person’s interests, without that person first being a party to the proceedings
before it. The purpose of this requirement is to ensure that the person in question
knows of the complaint so that they can enlist counsel, gather evidence in
support of their positi on, and prepare themselves adequately in the knowledge
that there are personal consequences - including a penalty of committal - for their
non-compliance. All of these entitlements are fundamental to ensuring that
potential contemnors’ rights to freedom and security of the person are, in the end,
not arbitrarily deprived.’10
[9] The caveat added to the above, however, was that joinder was not always
necessary. This would be a situation where, for example, a rule nisi was issued, calling
upon a person to appear and defend a charge or indictment against him or her.
Nkabinde ADCJ went on to hold that, in appropriate circumstances, a rule nisi could be
adequate ev en where there was a non -joinder in contempt of court proceedings. The
principle was not inflexible.11 The learned judge stated, further, as follows:
‘Bearing in mind, that the persons targeted were the officials concerned - the
Municipal Manager and commis sioner in their official capacities - the non-joinder
in the circumstances of these cases, is thus fatal. Both Messrs Lepheana and
Mkhonto12 should this have been cited in their personal capacities- by name- and
not in their nominal capacities. They were no t informed, in their personal
10 At paragraph [92].
11 At paragraph [94].
12 The individuals named were the officials in question; Mr Lepheana was the Municipal Manager for the
Matjhabeng Local Municipality, Mr Mkhonto was the Commissioner of the Compensation Fund.
capacities, of the cases they were to face, especially when their committal to
prison was in the offing. It is thus inconceivable how and to what extent Messrs
Lepheana and Mkhonto could, in the circumstances, be said to have been in
contempt and be committed to prison.’13
[10] Returning to the present matter, the respondents argued that the non -joinder of
the second and third respondents, in their personal capacities, was fatal. Leave to
appeal should be granted on that basis alone. It was argued, too, that personal service
on t he individuals in question had been imperative, especially considering the relief
sought by the applicant, i.e. committal. This was never done.
[11] The applicant contended that the present matter was distinguishable from
Matjhabeng because the Constitutional Court had dealt with situations where the
officials in question were convicted and sentenced to periods of direct imprisonment,
wholly suspended. In the present matter, the notice of motion in the contempt
application had clearly indicated that the applica nt sought committal; this had prompted
the respondents to file a notice of opposition. They had, in all, at least five weeks to
prepare themselves adequately in the knowledge that there were personal
consequences, including committal, for non -compliance. T hey did nothing. The
applicant also contended that the order, as granted, required the applicant to approach
the court, again, on supplemented papers where necessary , for the implementation of
the order; the committal of the second and third respondents co uld not take place
without the completion of this step.
[12] In terms of section 12(1)(a) of the Constitution, everyone has the right to freedom
and security of the person, including the right not to be deprived of freedom arbitrarily or
without just cause. Notwithstanding the applicant’s submissions, it could well be said
that, despite the safeguard of requiring the applicant to complete the extra step
described, the court has already convicted and sentenced the second and third
respondents. The extra step is merely for the implementation of the finding and the
13 At paragraph [103].
sanction imposed. The contempt application was not brought against the incumbent
senior administrative official and senior public office bearer of the first respondent in
their personal capacities. They were cited in their official capacities. The notice of
opposition indicates nothing to the contrary. The argument can indeed be made that,
because the nature of the relief sought and how it would entail the potential deprivation
of personal freedom, the ap plicant was required to have ensured the joinder of the
second and third respondents in their personal capacities, alternatively, at the very
least, personal service of the contempt application. Neither factor exists in the present
matter.
[13] The court considers itself bound by the principles enunciated in Matjhabeng; it is
satisfied that the respondents would have a reasonable prospect of success on appeal
based on the ground of non -joinder alone. Regarding the remaining grounds, however,
the court stands by its findings.
[14] Consequently, the following order is made:
(a) leave to appeal to a full bench of the Eastern Cape Division is granted; and
(b) the costs of the application are those in the appeal.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Mr Tarr
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 Rawjee SC with 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 heard: 02 December 2024.
Date of delivery: 05 December 2024.