REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE )
CASE NO : 641/2025
In the matter between:
MASHEBANE DANIEL MALESA NO First Applicant
JOSEPH KAMELA MODIBA NO Second Applicant
MOTHOKA TERRENCE MOSIBIHLA NO Third Applicant
THETELE JOSEPH MALATJ I NO Fourth Applicant
MANKUROANE SAMUEL MODIBA NO Fifth Applicant
MOTLATSO IVY MAGOELE NO Sixth Appl icant (1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
Makoti AJ
_____________ ________ _________________
SIGNATURE DATE
DATE………… SIGNATURE :……
MAATISHI SIMON MAKGOBA NO Seventh Applicant
MOGOWE WINDSOR MADIA NO Eighth Applicant
MOKGADI ONICA MAKGOBOLA NO Ninth Applicant
MMAMOKGOTLA M ONICA MATLEBJANE NO Tenth Applicant
REFIL WE IRENE LETSOAL O NO Eleventh Applicant
MOTLOKWA SU ZAN MOJAPELO NO Twelfth Applicant
MATOME DAVID MODIBA NO Thirteenth Applicant
MOHALE ELIAS NYAKALA NO Fourteenth Applicant
MATLOU JACQUELINE MAKGOBA NO Fifteenth Applicant
(In their capacities as duly authorised trustees of the
MAMPHOKU MAKGOBA COMMUNITY TRUST )
And
TSHEPO MALEBATI First Respondent
BETTIE MAKGOBA Second Respondent
ENNIE MAKGOBA Third Respo ndent
MAROTHI MAKGOBA Fourth Respondent
JIMMY KUBYANA Fifth Respondent
REBECCA MAFA Sixth Respondent
BOTHA RAPATSA Seventh Respondent
Delivered : This judgment is handed dow n electronically by circulation to the parties
through their legal representatives’ email addr esse s. The date for the hand -down is
deemed to be 14 February 2025.
JUDGMENT
Makoti AJ
Introduction
[1] I am called upon to uplift the suspended jail sentence of 18 months, and
condemn the respondents to imprisonment. The cause, a meeting whi ch they
attended at the community hall situated on the Remaining Extent of the Farm
Middlekop 552 LT, Limpopo (the property) . Attendance of the meeting is
common cause and I need not spend much time of the issue. The terms of
imprisonment was decided by Tshidada J on 11 June 2024, consequent to
finding that the respondent had made themselves guilty of contempt of an order
by Dean J dated 26 M arch 2024.
[2] Through the order o f 26 March 2024 the court interdicted the respond ents from
entering onto an number of properties, including Middlekop, and over any other
property that is under the applicants ’ control, or which may subsequently
become under their control. In the case of t he property, the respondents are
only entitled to be on the area on which their residences are located.
[3] Stepping onto any other part o f Middlekop becomes a contravention of the court
order which renders the respondents liable for imprisonment upon bei ng found
guilty of contempt. The community hall in which the respondents and other
community members attended a co mmunity meeting is on the property,
meaning that, by merely leaving the area allocated for their residences , they
commit contempt of the court order of 26 M arch 2024.
[4] The application to hold the respondents in contempt of the order of Dean AJ
stands oppose d by the respondents. In opposing the application t hey have
proffered an explana tion of the ir reason s for attending the meeting at the
community hall.
Urgency considerations
[5] As I shall explain b riefly below, I readily accept and treat this matter as urgent.
[6] Contempt of a co urt order is repugnant to the rule of law, which undermines the
authority which has been cons titutionally bestowed on the country ’s judicial
system. With this case, in particular, the allegation is that o f repeated contempt
of court order granted by Dean AJ, supra , which calls for this court to promptly
interrogate the conduct of the respondent which the applicant s complain about.
It is alleged amongst others that:
[6.1] The respondents attended a meeting at the community hall on 09
January 2025 ;
[6.2] In attending the meeting they contravened the court order by stepping
onto the part of the property which is not part of their allecated
residences ; and
[6.3] While at the meeting, the respondents indicated t heir resolve to wage a
fight against the applicants, the trustees.
[7] It is common cause that the respondents attended the said meeting . On face
value these alle gations suggest willful disregard of the court order and,
therefore, it is warranted for the case to be adjudicated urgently. Urgency
principle s are well -known , and they are canvassed in a number of authorities
which interpreted the provisions of Rule 6(12 )(b) of the Uniform Rules . Where
contempt is continuous, as the applicants allege in this ma tter, court s have
generously accepted and dealt with the cases on urgent basis so as to maintain
the intergrity of the judicial system and to sta mp the authority of our cou rts and
the orders that have been issued by them.1 Each case stands on its facts and ,
based on the allegations in this matter, I accept and deal with this application on
urgent basis.
Test for contempt of court
[8] Civil contempt happen s where a person commits an act of disobedience of a
court of law's judgement or rule. Unlike other forms of contempt, civil contempt
does not violate the law. Instead, it provides an option for the individual in
contempt to follow the court order, if that party had decided not to do so. In its
perculiar way, c ivil contempt is a special case of contempt that is used as a
mechanism to force the individual to comply with the court's order, and
imprisonment or fines might result from a party that refuses to comply with t he
order.
1 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zu ma and Othe r [2021] ZACC 18; 2021 (9) BCLR
992 (CC); 2021 (5) SA 327 (CC).
[9] One cannot gainsay the trite principle that all persons have a legal obligation to
obey court orders. Blatant d isregard of court orders is an affront to the rule of
law. The test for contempt is established as follows:2
[9.1] the contemnor mu st have knowledge of the court order;
[9.2] there must be non -compliance with the court order; and
[9.3] the non -compliance must have been wilful or male fide s.
[10] To find that the respondents have committed further acts of c ontempt,
necessitating t he uplifting of Tshidad a J’s suspended order for imprisonment , I
must find the existence of all these three factors. Our jurisprudence , which has
been established through inter alia authorities such as Matj habeng Local
Municipality , recognised that where a c ommittal is to be ordered, the standard
of proof in civil contempt matters has to be the criminal standard.3 It is in those
circumstances that wilful l and male fide disobed ience of a court order has to be
shown beyond reasonable doubt.4 Where there exists reasonable doubt as to
the contemnor ’s wilfulness and malice, committal should not be imposed.
[11] It is established in our law that the contemnor bears the evidential burden to
create a reasonable doubt in the mind of the court with regard to the questi on
whether his conduct non-compliance or b reach of a court order was wilful
and male fid e. This then takes me to the explanation prof fered by the
2 Fakie NO v CCII Systems (Pty) Lt d [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA); Pheko and
Others v Ekurhulen i Metropolitan Municipalit y [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR
711 (CC); 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 Othe r [2021] ZACC 18; 2021 (9)
BCLR 992 (CC); 2021 (5) SA 327 (CC).
3 Matjhab eng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limite d [2017] ZACC 35 ; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC)
para 61.
4 Ibid, at par 62.
respondents for attending the meeting of 09 January 2025 at the community
hall.
Explanation for the respondent s’ breach
[12] I have already mentioned that attendance of the meeting is not dispute d. So,
too, I have no doubt that the respondents were aware of the court orders that
have been iss ued, first by Dean A J and, thereafter , by Tshidada J. The question
remain ing is whether there was willful disobedience of the orders, especially the
first one of Dean AJ.
[13] The respondents face an eviction application which was instituted by the
applicants. For that to happen, the Greater Tzaneen Local Municipality (the
Municipality) under wh ose area of jurisdiction they reside is required to provide
an investigatio n report to the court , indicating the number and categories of
people who will be affected by the eviction, if it is event ually granted.
[14] Their explain ation was therefore that the y attended the meeting on the invitation
by the Municipality. The meeting arrangement was confirmed by one Mr Marothi
Valley Raphesu (Mr Raphesu) , a legal practitioner at Modjadji Raphesu
Incorporated. It is common cause that Mr Raphe su was in attendance of the
meeting and, while there, distributed qu estio nnaires as part of th e Municipality ’s
investigation of the circumstances of the residents facing eviction.
[15] Having confirmed the arrangement of the meeting, Mr Raphesu later purp orted
to retract his stance as to who arraned it and the circumstances under which he
attend ed. In his retraction he says that the meeting was not at the Municipality ’s
instance and that he too was invited to attend it by the respondents. He goes
further t o state that he was abused by the people who were at the meeting , a
serious stat ement which is intended to portray the respondent s as having
maliciously disobeyed the court order. The statement attributed to him reads out
of the replying affidavit inter al ia as follows:
“20.4.10 He signed the confirmatory affidavit whe n pressed to do so by Ms.
Mototola and did so without having ha d sight of the answering affidavit
or the confirmatory affidavit deposed to by Ms. Mototola. He accord ingly
wants to withdraw the confirmat ory affidavit deposed to by him on 03
February 2025. ”
[16] The retraction was conse quent to a discussion with the legal representative of
the applicants. I could sa y a lot about the conduct of Mr Raphesu for signing a
confirmatory affidavit with out reading it and what it intended to confirm , but I
elect to focus on the case at hand. Importantly, I do not accept the retraction o f
the confirmation , in reply, which is impugns the conduct of Ms. M atotola as a
legal representative. Worse, t he responde nts are faced with critical facts which
hold the key to whether they should be sent to impriso nment or not.
[17] Malice ta lks to the state of mind, called in other language as mens rea . On this
occasion I am not satisfied that the respondents had the nece ssary animus to
disobey the court order. Emotional outb usts or such like when they come from
persons who are facing blea k future are understandable. They may be criticised
for what some of them have said at the meeting. However, I do not believe that
they attended the meeting with the animus of disobeying the order of Dean AJ,
the ef fect of which co unsel fo r the respondents w ielded much criticism. Being
not an appeal court, I do not concern myself with th e propri eties of the court
order . I, instead , and on t he established facts, accept that the meeting which
they attended was at the instance of the Municipality.
[18] Just on the basis of the contra dicting nature of Raphesu ’s statements, both
under oath after having attested to it that he knew and understood t he contents
of what he was deposing for, serious doubt has been cast as to the
respondent ’s state of malice for attending the meeting. Where a contem nor has
shown that his non -compliance with a court order was not wilful nor malicious,
he will escape guilt .5 That, for me is significant enough to yield an outcome for
the dismiss al of the application . I have no reason for c osts to not follow the
result.
Order
[19] I make the following order:
[a] The application is dismissed with costs .
______________ _____
MOKGERWA MAKOTI
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWAN E
APPEARANCE S:
HEARD ON : 11 FEBR UARY 2025
JUDGMENT DELIVERED ON: 14 FEBRUARY 2025
FOR THE APPLICANT: ADV R GRUNDLINGH
JOUBERT & MAY ATTORNEYS
TZANEEN
C/O RANDY MAKGOBA IN C
POLOKWAN E
5 Putco Ltd v T V & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 863 D-E.
FOR THE RESPONDENT: ADV M MONENE
MATOTOLA TSE LENG ATTORNEYS INC
POLOK WANE