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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NO: 34/2024
CASE NO AQU O: 8907/2024
In the application for leave to appeal in the matter between:
THABAZIMBI LOCAL MUNICIPALITY FIRST APPLICANT
LETSEKA GLADWIN TLOUBATLA SECOND APPLICANT
and
ABSA BANK LTD FIRST RESPONDENT
EMMA MANKGA SECOND RESPONDENT
MELISSA MULLER THIRD RESPONDENT
(1) REPORTABLE: YES
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED.
DATE 14 February 2025 SIGNATURE
Type text he
-
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Date of Hear ing: 4 February 2025 (virtually Ms Teams)
Delivered: 14 February 2025
Summary: Application for leave to appeal in terms of section s 17(1) (i) and (ii) of the Superior
Courts Act 10 of 2013 , against the judgment and order which found the respondents in
contempt of court – Court’s inherent power to impos e a non -coercive sanction - periodic
imprisonment and fine respectively – respondents failure to inter alia : discharge evidentiary
burden in contempt inquiry ; bare averments made in raising defence ; comply with court ’s
directive in terms of Rule 6(5)(g) of the Uniform Rules of Court ; and their failure or refusal to
place mitigating factors before the court in consideration of the appropriate sanction .
This judgment was circulated electronically to the parties’ representatives by email. The
date and time of hand -down are deemed to be 10h00 on Friday, 14 February 2025.
JUDGMENT : APPLICATION FOR LEAVE TO APPEAL
MORGAN AJ
INTRODUCTION
[1] Before me is an application for leave to appeal by the respondents —Absa Bank Ltd,
Emma Mankga, and Melissa Muller against the order and judgment I delivered on 18
December 2024. For purposes of this application, I will refer to the parties as they
appear ed before me. The respondents seek leave to appeal against findings made in the
contempt of court proceedings brought by Thabazimbi Local Municipality and its
Municipal Manager, Letseka Gladwin Tloubatla .
[2] The applicants —Thabazimbi Local Municipality and its Municipal Manager, Letseka
Gladwin Tloubatla filed a notice to abide with the court’s order in this application.
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[3] The underlying dispute pertains to the respondent s' failure to comply with two court
orders —granted by Naude -Odendaal J on 20 August 2024 and Phatudi J on 21
December 2023 —which directed Absa to grant Thabazimbi Local Municipality and its
Municipal Manager, Letseka Gladwin Tloubatla full access to and control over the
Municipality’s bank accounts. The respondents were found to be in wilful and mala fide
non-compliance with these orders, leading to a finding of contempt against them .
[4] The legal standard applied in the original judgment required the court to consider whether
the respondent s’ conduct met the established criteria for contempt of court, namely: (i)
the existence of a valid court order, (ii) knowledge of that order by the respondent s, (iii)
non-compliance with the order, and (iv) wilfulness and mala fides in failing to comply. The
court held that once non -compliance with a valid order is established, wilfulness and mala
fides are presumed unless the contemnor rebuts this presumption by demonstrating a
reasonable doubt. The respondent s failed to meet this evidentiary burden, resu lting in the
contempt finding.
[5] The central issue in this application is whether there are reasonable prospects of success
on appeal or compelling reasons why leave should be granted, as required
by section 17(1) of the Superior Courts Act 10 of 2013.
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[6] The respondents argue that their non -compliance with the orders was neither wilful nor in
bad faith but rather a consequence of conflicting legal obligations arising from multiple
court orders and pending appeals. They contend that:
a. They were caught between two rival municipal factions, each claiming
legitimate control over the Municipality’s financial affairs.
a. They received legal advice that they were not in a position to comply with the
orders without risking liability for implementing an unlawful instruction.
b. The orders relied upon by the applicant’ s had been challenged through pending
appeals and conflicting court decisions, creating legal uncertainty.
c. Their conduct did not meet the high threshold for contempt of court, particularly
in light of their reliance on senior counsel’s legal advice.
[7] The respondents have served a notice to abide and have not opposed this application for
leave to appeal. Consequently, this court is required to determine the application on the
basis of the submissions made by the respondents and the applicable legal principles.
[8] The test for leave to appeal, as set out in section 17(1)(a) of the Superior Courts Act,
requires this court to assess whether:
a. There is a reasonable prospect that another court would come to a different
conclusion,1 or
1 This criterion requires the applicants to demonstrate that another court, applying the same facts and
law, would come to a different conclusion —not merely that it could . The threshold, as held by the Supreme
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b. There is some other compelling reason why the appeal should be heard,
including conflicting judgments on the issue.2
[9] To properly contextualise the issues at hand, the court will first set out the factual
background before addressing the grounds for leave to appeal.
FACTUAL BACKGROUND
[10] This matter arises from a dispute concerning control over the bank accounts of
Thabazimbi Local Municipality, held at Absa Bank Ltd. The litigation history spans
multiple court orders, appeals, and allegations of non -compliance, primarily resulting from
political instability within the Municipality and competing claims over the authority to
manage its financial affairs. The protracted nature of this litigation been produced a
veritable forest of court orders.
[11] The respondents —Absa Bank Ltd, Emma Mankga, and Melissa Muller —were cited
for contempt of court after failing to comply with two binding court orders . First, the order
of Phatudi J on 21 December 2023, which directed Absa to grant Letseka Gladwin
Tloubatla (Municipal Manager) and Kedisaletse Johannes Matlou (Acting Chief Financial
Court of Appeal in Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7, demands a realistic, rather
than remote, chance of success. The Superior Courts Act has deliberately raised this threshold, reflecting the
need to prevent appeals that merely rehash arguments already considered and rejected by the trial court.
2 Even if there are no reasonable prospects of success, leave may still be granted if there are compelling
reasons. This includes cases that raise novel or significant questions of law, conflicting judgments on the same
issue, or matters of substantial publi c importance (see Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020]
ZASCA 17 ; 2020 (5) SA 35 (SCA) at para 2 ). However, the mere presence of complex legal issues does not
automatically justify an appeal unless those issues have wider implications beyond the immediate case.
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Officer) full access to the Municipality’s bank accounts and to restrain other individuals
from accessing them.
[12] Second, the order of Naude -Odendaal J on 20 August 2024, which reaffirmed the
previous order and declared that the dispute over access to the bank accounts had been
finally resolved.
[13] Despite these orders, Absa refused to grant access to the Municipality’s accounts,
citing conflicting court orders and pending appeals. The respondents contended that they
were placed in an untenable legal position due to contradictory directives issued by
different courts, including orders from the Regional Court obtained by a rival municipal
faction led by Butana Ben Thlabadira.
[14] The respondents, believing that Absa’s refusal amounted to wilful defiance of court
orders, launched an urgent contempt of court application, arguing that : (a) Absa’s reliance
on conflicting court orders was a deliberate attempt to frustrate the enforcement of judicial
directives; (b) the orders of Phatudi J and Naude -Odendaal J had been
declared immediately enforceable, meaning that any appeal did not susp end their
operation; and (c) the conduct of Mankga and Muller, as senior officials at Absa,
demonstrat ed reckless disregard for the authority of the courts and warranted punitive
consequences.
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GROUNDS FOR LEAVE TO APPEAL BY THE APPLICANT
[15] The respondents seek leave to appeal on the basis that there are reasonable
prospects of success on appeal or compelling reasons why the appeal should be heard,
as required by section 17(1) of the Superior Courts Act 10 of 2013. The primary grounds
of appeal raised by the respondents are as follows .
[16] The test for contempt of court was misapplied:
a. The respondents contend that the court erred in its application of the legal test
for contempt of court, particularly in relation to wilfulness and mala fides . They
argue that:
i. The court incorrectly reversed the onus of proof, requiring the
respondents to prove that their conduct was not wilful or in bad faith.
ii. In Fakie NO v CCII Systems (Pty) Ltd ,3 the Supreme Court of Appeal
held that the applicant in contempt proceedings must prove, beyond a
reasonable doubt, that the respondent acted deliberately and in bad
faith.
iii. The respondents argue that this standard was not properly applied, and
instead, they were presumed to have acted mala fide , without the
respondents discharging their criminal burden of proof.
3 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
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[17] The Court failed to consider the defence of legal advice:
a. The respondents argue that they acted on bona fide legal advice and that their
reliance on such advice should have negated any finding of contempt. They
submit that:
i. Contempt of court does not arise merely from non -compliance with a
court order but requires a deliberate and contumacious disregard of
judicial authority.
ii. In Samancor Chrome Ltd v Bila Civil Contractors (Pty) Ltd ,4 the
court recognised that reliance on legal advice may serve as a valid
defence in contempt proceedings.
iii. The respondents were advised by senior counsel that compliance with
the orders of Phatudi J and Naude -Odendaal J could expose them to
liability due to conflicting court orders and pending appeals.
iv. The court failed to consider this legal uncertainty and wrongly found that
reliance on legal advice was not a defence to contempt.
[18] The Court did not properly consider the effect of conflicting court orders.
a. The respondents contend that the litigation history of this matter has resulted
in multiple conflicting orders, creating uncertainty as to which orders were
binding. They argue that:
4 Samancor Chrome Ltd v Bila Civil Contractors (Pty) Ltd 2022 JDR 3569 (SCA).
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i. The orders of Phatudi J and Naude -Odendaal J were issued against the
backdrop of other competing orders, including orders of the Regional
Court.
ii. The order of Gaisa AJ, which was subject to appeal, also impacted the
dispute over who had lawful control over the Municipality’s bank
accounts.
iii. The respondents reasonably believed that compliance with one order
would place them in violation of another order, which they
argue constitutes a reasonable ground to contest a finding of contempt.
iv. The Supreme Court of Appeal or the Constitutional Court should
clarify the proper approach to compliance with conflicting court orders in
cases of complex litigation.
[19] The Court’s order imposed unprecedented punitive consequences .
a. The respondents argue that the sanction imposed in the contempt proceedings
was overly punitive and improperly based on the Zuma precedent. They submit
that:
i. In Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture v Zuma ,5 the Constitutional Court
imposed direct imprisonment for civil contempt, but only after the
5 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture v Zuma 2021 (5) SA
327 (CC).
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respondent had publicly and unequivocally declared his refusal to
comply.
ii. The present case is distinguishable because the respondents did
not openly defy the court but instead sought clarity on their
obligations in the face of legal uncertainty.
iii. The contempt order imposed direct punitive consequences, rather
than being coercive in nature, which the respondents argue is a
departure from established jurisprudence.
[20] There is a broader public interest in clarifying the law on contempt .
a. The respondents argue that, even if reasonable prospects of success were not
established, there is a compelling reason to grant leave to appeal due to the
public importance of the case. Specifically, they contend that:
i. The case raises important legal questions about how financial
institutions should respond to conflicting judicial directives.
ii. It concerns the proper test for contempt of court, particularly in cases
involving non-compliance due to legal uncertainty.
iii. The Supreme Court of Appeal or Constitutional Court should provide
guidance on the legal duty of banks when faced with competing claims
over control of municipal funds.
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[21] Based on these grounds, the respondents submit that leave to appeal should be
granted to allow another court to reconsider the findings on contempt and apply the
appropriate test.
[22] With the grounds of appeal set out, the court will now consider the test for granting
leave to appeal under section 17(1) of the Superior Courts Act.
STATUTORY FRAMEWORK FOR GOVERNING LEAVE TO APPEAL
[23] Section 17(1)(a) of the Superior Courts Act reads:
“17.(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that —
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.”
[24] Leave to appeal is not merely for the taking. It is a high threshold that must be met
before an appeal may proceed. Courts must be cautious in granting leave, as doing so
too readily would undermine the principles of finality and legal certainty in litigation. The
appellate process exists to correct material errors of law or fact, not to provide parties
with a second bite at the cherry simply because they are dissatisfied with an outcome.
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[25] Someone seeking permission to appeal a court decision must demonstrate more than
just a debatable point or the possibility of a different outcome in another court. It's not
enough to simply say the case could be decided differently. They must convincingly show
a solid, logical reason to believe the appeal has a reasonable chance of succeeding.
[26] A robust approach to applications for leave to appeal is essential to prevent frivolous
appeals from burdening the judicial system. If leave to appeal were granted too easily, it
would clog up the appellate courts with matters that do not warrant further j udicial
consideration, delaying the resolution of truly meritorious appeals.
[27] The importance of finality in litigation cannot be overstated. Finality in litigation is a
key principle in the administration of justice. A court order, once given, must be obeyed,
and appeals must be limited to those instances where material errors warra nt
reconsideration. An appeal should not merely be brought in order to frustrate this. ”6
[28] In considering the import of section 17(1)(a) of the Superior Courts Act , the Supreme
Court of Appeal in MEC for Health, Eastern Cape v Mkhitha and Another stated that
leave to appeal should only be granted if there is a genuine reasonable prospect of
success. Section 17(1)(a) of the Superior Courts Act, 10 of 2013, stipulates that leave to
6 The Supreme Court of Appeal Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others
2013 (6) SA 520 (SCA) at para 24 , held that “[t]he importance of finality in litigation cannot be overstated. Finality
in litigation is a key principle in the administration of justice. A court order, once given, must be obeyed, and
appeals must be limited to those instances where material errors warrant reconsideration. An appeal should
not merely be brought in order to frustrate this. .
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appeal may be given only where the judge concerned believes the appeal has a
reasonable prospect of success or there is another compelling reason for it to be heard.7
[29] An applicant seeking leave to appeal must demonstrate to the Court, with proper
grounds, that there is a reasonable prospect or realistic chance of success on appeal.
Simply showing a possibility of success, presenting an arguable case, or proving that the
case is not hopeless is insufficient. There must be a sound and rational basis to conclude
that there is a reasonable prospect of success on appeal.8
[30] In a similar vein, the Supreme Court of Appeal in Smith v S held, in relation to what
constitutes “reasonable prospects of success” in terms of section 17(1)(a)(i) of the
Superior Courts Act, that:
“What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on appeal and that those
prospects are not remote but have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success that the case is arguable on
appeal or that the case cannot be categorised as hopeless. There must, in other words, be
a sound, rational basis for the conclusion than there are prospects of success on appeal.”
7 MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176 at para 16.
8 Ibid at para 17.
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[31] It is also trite that the Superior Courts Act, in terms of section 17, has evidently raised
the threshold for granting leave to appeal against a High Court judgment. The use of the
word "would" in the statute suggests a higher degree of certainty that another court will
disagree with the judgment being appealed.9
[32] In S v Kruger , the Supreme Court of Appeal articulated the significance of the word
‘would’ and the normative weight it brings. The Court there said:
“Before dealing with the merits of the appeal, it is necessary at the outset to deal with the
test applied by the high court in granting leave to appeal to this court. Despite dismissing the
appellant’s appeal, the high court concluded that it was ‘possibl e’ that another court might
arrive at a different conclusion and that leave to appeal should not be ‘lightly refused’ where
the person concerned is facing a lengthy sentence of imprisonment. This is an incorrect test.
What has to be considered in deciding whether leave to appeal should be granted is whether
there is a reasonable prospect of success. And in that regard more is required than the mere
‘possibility’ that another court might arrive at a different conclusion, no matter how severe
the sentence tha t the applicant is facing.
…
The time of this court is valuable and should be used to hear appeals that are truly
deserving of its attention. It is in the interests of the administration of justice that the test
set out above should be scrupulously followed.”10 (My own emphasis).
9 See The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others 2014 JDR 2325 (LCC)
10 S v Kruger 2014 (1) SACR 647 (SCA) at paras 2 -3.
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[33] Reasonable prospects of success are a necessary but insufficient precondition for
granting special leave. Additional special circumstances are required. These may include
the appeal raising a substantial point of law, the prospects of success being so strong
that refusing leave would result in a manifest denial of justice, or the matter being of
significant importance to the parties or the public.11
[34] The test is not whether another court might possibly reach a different conclusion but
whether there is a reasonable prospect that another court would reach a different
conclusion. Additionally, it is well -established that an applicant seeking leave to appeal
must convince the court a quo that there are reasonable prospects of success on appeal.
Appeals should be restricted to cases where there is a reasonable prospect that the
factu al matrix might be interpreted differently or where there is a legitimate legal dispute.
[35] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd , the Supreme Court of
Appeal held that:
“In order to be granted leave to appeal in terms of s 17(1)(a)(i) and s 17(1)(a)(ii) of the
Superior Courts Act an applicant for leave must satisfy the court that the appeal would have
a reasonable prospect of success or that there is some other compelling reason why the
appeal should be heard. If the court is unpersuaded of the prospects of success, it must still
enquire into whether there is a compelling reason to entertain the appeal. A compelling
reason includes an important question of law or a discree t issue of public importance that
11 Cook v Morrisson and Another 2019 (5) SA 51 (SCA) at para 8. See also Westinghouse Brake &
Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) at 564H – 565E; Director of Public
Prosecutions, Gauteng Division, Pretoria v Moabi 2017 (2) SACR 384 (SCA) ([2017] ZASCA 85) at para 21
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will have an effect on future disputes. But here too, the merits remain vitally important and
are often decisive. Caratco must satisfy this court that it has met this threshold.”12
[36] This was affirmed by the Supreme Court of Appeal again in Ramakatsa and Others
v African National Congress and Another , where it held:
“Turning the focus to the relevant provisions of the Superior Courts Act (the SC Act), leave
to appeal may only be granted where the judges concerned are of the opinion that the appeal
would have a reasonable prospect of success or there are compelling rea sons which exist
why the appeal should be heard such as the interests of justice. This Court
in Caratco, concerning the provisions of s 17(1) (a)(ii) of the SC Act pointed out that if the
court is unpersuaded that there are prospects of success, it must stil l enquire into whether
there is a compelling reason to entertain the appeal. Compelling reason would of course
include an important question of law or a discreet issue of public importance that will have
an effect on future disputes. However, this Court co rrectly added that ‘but here too the merits
remain vitally important and are often decisive’. I am mindful of the decisions at high court
level debating whether the use of the word ‘would’ as opposed to ‘could’ possibly means that
the threshold for grantin g the appeal has been raised. If a reasonable prospect of success
is established, leave to appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to appeal should be granted. The
test of reason able prospects of success postulates a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In other words, the appellants in this matter need to convince this Court
on proper grounds that they have prospects of success on appeal. Those prospects of
success must not be remote, but there must exist a reasonable chance of succeeding. A
12 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020] ZASCA 17; 2020 (5) SA 35 at para 2.
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sound rational basis for the conclusion that there are prospects of success must be shown
to exist.”13
[37] The respondents submit that they meet both elements of the test. Firstly, they argue
that there are reasonable prospects of success because the trial court misapplied the test
for contempt of court, particularly regarding the onus of proof, the defence of legal advice,
and the effect of conflicting court orders. Secondly, they submit that there is a compelling
reason to grant leave, as the case raises important legal questions regarding the duties
of financial institutions when faced with competing court or ders.
[38] The respondents ’ grounds for leave to appeal fail to demonstrate a realistic prospect
of success on appeal. Their primary contention —that the court misapplied the test for
contempt by improperly shifting the onus onto them —is without substance . The court’s
approach was consistent with previous case law, where it was held that while the
applicant in contempt proceedings bears the initial burden to establish the existence of a
court order and non -compliance, the alleged contemnor must then provide evidence that
raises a reasonable doubt as to wilfulness and mala fides . The respondents , however,
failed to do so convincingly. Their reliance on legal advice did not negate their duty to
comply with a clear and binding court order , nor did it create a valid basis for them
to unilaterally decide which judicial directives to obey . The mere fact that multiple court
orders existed does not absolve a party from adhering to those expressly declared
enforceable .
13 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 3 at para 10.
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[39] Further, the respondents ’ argument that conflicting court orders
created insurmountable legal uncertainty is misplaced and exaggerated . The orders
of Phatudi J and Naude -Odendaal J were unambiguous and had been explicitly declared
operational despite any appeal . The respondents, as sophisticated litigants and corporate
entities had an obligation to seek judicial clarification before withholding compliance ,
rather than assuming that competing orders automatically invalidated the directives they
were bound to obey. The appellate courts have repeatedly emphasised that legal
uncertainty, particularly when self -imposed through selective compliance, does not
constitute a defence in contempt proceedings . The respondents ’ assertion that the trial
court failed to appreciate this complexity is without merit , as the judgment fully engaged
with their arguments and correctly found that their reliance on legal advice was not a
legitimate excuse for non -compliance.
[40] The respondents have also failed to establish any compelling reasons warranting the
appeal. While they assert that this case presents significant questions concerning the
obligations of financial institutions when faced with conflicting court orders, this argument
is unc onvincing. The principles governing contempt of court, particularly regarding
compliance with clear judicial directives, are well -settled in South African law. This case
does not raise novel or unresolved legal issues that necessitate appell ate intervention.
[41] Moreover, the respondents ’ attempt to frame the matter as one of broader public
interest is misplaced. The factual circumstances are specific to the respondents ’ conduct
in defying explicit court orders, and there is no indication that a ruling on this matter would
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have widespread implications for the financial sector or public administration. The
obligation of all parties —including financial institutions —to comply with enforceable court
orders is a foundational principle of the rule of law and does not require furth er judicial
clarification.
[42] In the absence of any novel legal question or demonstrable public interest, the
respondents have not shown any compelling reason justifying leave to appeal. The
appeal would not serve to develop the law or clarify conflicting decisions . Rather, it would
merely revisit factual and legal determinations already comprehensively addressed by
this court.
[43] The respondents ’ grounds for leave to appeal fail to demonstrate a realistic prospect
of success on appeal or any compelling reason why the appeal should be heard. Their
contentions, while presented as complex legal arguments, do not meet the high threshold
required unde r the Superior Courts Act.
[44] Given the well -reasoned nature of the judgment, there is little likelihood that an
appellate court would interfere with its findings. The Supreme Court of Appeal has
consistently held that appellate intervention is unwarranted unless the lower court’s
decision is clearly wrong in principle or results in a manifest injustice . The respondents ’
contentions amount to mere disagreement with the outcome , rather than demonstrating
any misdirection of law or fact that would warrant appellate scrutiny. This court’s ruling is
supported by established contempt jurisprudence , and there is no compelling basis to
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suggest that an appellate court would reach a different conclusion . In light of these
considerations, the grounds of appeal lack merit , and leave to appeal ought to be refused .
[45] I will elaborate on these findings below.
CONTEMPT OF COURT
[46] The respondents ignored the two court orders of Phatudi J and Naude -Odendaal J,
respectively. This is common cause. The respondents did not comply with these court
orders at all. At the hearing, their counsel conceded as much and further submitted that
they would not comply with any other order coming from the court. This is undisputed ,
and the record bears the events that took place.
[47] I do not want to be misunderstood. The respondents did not comply with any of the
orders and further indicated that they would not comply with any court orders. When they
were given an opportunity to make oral representations and place evidence before this
Court about their non -compliance in terms of Rule 6(5)(g) of the Uniform Rules of Court,14
14 Rule 6(5)(g) of the Uniform Rules of Court provides:
“Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and expeditious
decision. In particular, but without affecting the generality of the aforeg oing, it may direct that
oral evidence be heard on specified issues with a view to resolving any dispute of fact and
to that end may order any deponent to appear personally or grant leave for such deponent
or any other person to be subpoenaed to appear and be examined and cross -examined as
a witness or it may refer the matter to trial with appropriate directions as to pleadings or
definition of issues, o r otherwise.”
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the respondents did not attend court and disregarded that court directive and purported
to appeal it.
[48] I pause here to make the following observations. At their core, contempt of court
proceedings are not merely about enforcing compliance with specific orders; they address
a far more profound concern —the preservation of judicial authority and the rule of law.
The judiciary’s legitimacy rests on its ability to ensure that its decisions are followed and
implemented. When court orders are ignored or defied, the judiciary’s standing as the
final arbiter of the law is gravely weakened, undermining public trust in the legal system
and eroding confidence in the courts’ capacity to uphold justice.
[49] Beyond enforcing individual rulings, contempt proceedings serve a twofold purpose.
First, they affirm the court’s institutional authority, making it clear that disobedience
carries consequences and that judicial decisions cannot be treated as optional. Sec ond,
they act as a means of compelling compliance, reinforcing the court’s function as the
primary instrument for resolving disputes and ensuring the enforcement of legal rights
and obligations.
[50] Without a robust mechanism to enforce court orders, the judiciary would be rendered
ineffective, and the legal system as a whole would cease to command respect. The
absence of consequences for non -compliance would invite disorder, allowing litigants to
selectively adhere to judgments at their convenience. Such an erosion of judicial authority
would not only disrupt the administration of justice but also threaten social stability, as
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adherence to the rule of law is fundamental to maintaining order and ensuring a just
society.
[51] With that in mind , let us briefly consider contempt of court proceedings. There are two
types of contempt of court – there is scandalising the court and non -compliance with court
orders. In this case, we are concerned with the latter, that is, non -compliance with court
orders.
[52] The legal test for contempt of court is well established and requires proof of (i) the
existence of a court order, (ii) knowledge of the order by the alleged contemnor, (iii) non -
compliance with the order, and (iv) wilfulness and mala fides in failing to comply.15 At this
point, the burden shifts to the respondent, who must provide sufficient evidence to create
reasonable doubt. If the respondent fails to meet this evidentiary burden, contempt will
be established.
[53] The first three elements —the existence of a valid order, knowledge of the order, and
non-compliance —are not in dispute. The respondents were fully aware of the orders
granted by Phatudi J on 21 December 2023 and Naude -Odendaal J on 20 August 2024,
both of which expressly directed them to grant the Thabazimbi Local Municipality’s
officials unrestricted access to its bank accounts. Despite this, they failed to comply ,
15 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma and Others 2021 (5) SA 327 (CC);
Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C) ; Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52; 2006 (4) SA 326 (SCA).
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leading to the contempt proceedings. The primary issue, therefore, is whether their non-
compliance was wilful and mala fide , or whether they had a reasonable justification for
their conduct.
[54] The courts have consistently held that wilfulness and mala fides are presumed once
non-compliance with a court order is established, unless the respondent can rebut this
presumption by demonstrating a reasonable doubt as to their state of mind. In Pheko v
Ekurhuleni City , the Constitutional Court reaffirmed this principle, stating that:
“the presumption rightly exists that when the first three elements of the test for contempt
have been established, mala fides and wilfulness are presumed unless the contemnor is
able to lead evidence sufficient to create a reasonable doubt as to their existence. Should
the contemnor prove unsuccessful in discharging this evidential burden, contempt will be
established. ”16
[55] In the contempt proceedings, the respondents refused to appear and present oral
representations as to their non -compliance. Thus, there was no evidence before the Court
to disprove this presumption. The respondents then, ex post facto, in these proceedings
then state that they lacked wilfulness and mala fides because they were placed in a legally
untenable position due to conflicting court orders and pending appeals. They contend that
their decision to withhold access to the bank accounts was made on legal advice, rather
than ou t of deliberate defiance. However, this argument does not withstand scrutiny.
16 Pheko v Ekurhuleni City 2015 (5) SA 600 (CC)at para 36.
24
[56] It is trite that court orders must be followed unless suspended, varied, or set aside by
a competent court. A party who is uncertain about the precise requirements of a court
order cannot unilaterally decide how to comply based on its own interpretation of
competing legal obligations. The proper course of action is to return to court and
seek judicial clarificat ion, rather than risk contempt through selective compliance.
[57] Where there is confusion about the court order, parties cannot unilaterally determine
their compliance but must approach the court for clarification. Where there is confusion
about the court order, parties cannot unilaterally determine their compliance but must
approach the court for clarification. Contempt of court arises from a contumacious
disregard for judicial authority, implying that parties cann ot ignore court orders based on
their own interpretation. I need not say more about this.
[58] Contrary to the respondents ’ argument that the court erred by applying a reverse
onus, this assertion is plainly false. The court applied the well -established legal principle
that, in contempt proceedings, once the existence of a valid order, knowledge thereof,
and non -compliance ar e established, wilfulness and mala fides are presumed unless the
alleged contemnor raises a reasonable doubt. This is not a reversal of onus but rather the
proper application of the test set out by the Supreme Court of Appeal in Fakie NO v CCII
Systems (Pty) Ltd , which remains binding precedent. The Fakie judgment made it clear
that contempt of court carries a criminal standard of proof beyond a reasonable doubt,
but once the core elements are proven, the respondent bears an evidentiary burden to
25
provide evidence that raises a reasonable doubt about wilfulness and mala fides.
In Pheko v Ekurhuleni City , the Constitutional Court reiterated that a respondent must
adduce evidence to demonstrate that their non -compliance was not deliberate or in bad
faith, failing which the presumption of contempt remains undisturbed.
[59] The respondents , however, failed to discharge this evidentiary burden. They relied
on general claims of legal uncertainty and their alleged reliance on legal advice,
yet produced no concrete evidence that their refusal to comply was anything other than a
deliberate choic e. Their own counsel, during the proceedings, conceded that they had no
intention of complying with any future orders of this court, which fundamentally
undermines their position. The courts have consistently held that a mere assertion of
confusion or reli ance on legal advice is insufficient unless supported by clear evidence
showing a genuine, reasonable, and insurmountable obstacle to compliance.
[60] Thus, this ground of appeal bears no reasonable prospects of success.
FAILED TO TAKE INTO ACCOUNT THAT ABSA RELIED ON LEGAL ADVICE
ARGUMENT
[61] The argument that the respondents relied on the advice of legal counsel and therefore
elected not to comply because they were advised as such is problematic. Absa is a well-
resourced financial institution with significant experience in handling complex legal and
regulatory matters. As one of South Africa’s leading banks, it cannot plausibly claim that
26
it was left with no option but to act on a single legal opinion without further inquiry. Given
the high stakes involved, including the fact that the Municipality’s bank account
remained effectively frozen, thereby crippling its ability to carry out essential public
functi ons, Absa had a duty to exercise heightened diligence before making a unilateral
decision that led to non -compliance with the court orders. It was neither an
unsophisticated nor powerless litigant —it had access to the best legal minds in th e
country and could have sought a second legal opinion or approached the court itself for
urgent clarification. Its failure to do so demonstrates a lack of prudence rather than
genuine legal uncertainty.
[62] The argument that Absa was caught in a legally impossible position rings hollow when
one considers its own status as a highly profitable corporate entity with vast legal
resources at its disposal. A bank of its stature would routinely seek multiple legal
opinions when faced with significant financial or regulatory risk, particularly where the
failure to act could disrupt operations. The fact that it did not take this basic step —despite
handling a Municipality’s funds, which are essential for service deliver y and public
administration —suggests that its non -compliance was not merely a result of confusion
but a conscious decision to hedge its risks at the expense of the Municipality. Public
functionaries and institutions that play a crucial role in service deli very must act with
heightened responsibility, particularly when their actions —or inactions —could have far -
reaching consequences. Absa’s decision to ignore this duty, instead choosing to self-
interpret its legal obligations in a manner that favoured inactio n, is inexcusable.
27
[63] Absa’s failure to comply with the court orders directly impacted the Municipality’s
ability to fulfill its constitutional obligations. Municipalities are tasked with ensuring
the provision of essential services, including water, sanitation, and electricity . By refusing
to release the Municipality’s funds or to seek urgent judicial clarification, Absa did not
merely fail in its obligations as a neutral financial institution, but also directly contributed
to governance paralysis within the Municipality . A financial institution entrusted with public
funds cannot conduct itself as if it were merely a private actor indifferent to the
consequences of its decisions. The courts have long recognised that entities
exercising quasi -public functions —particularly those handling government accounts —
must act in a manner that ensures accountability, transparency, and compliance with
legal directives.
[64] Absa had multiple avenues available to it to prevent the legal dilemma it now claims
to have been in. It could have: (a) sought a second legal opinion to confirm whether its
course of action was legally defensible; (b) approached the court for declaratory relief to
obtain judicial clarity rather than making its own determination; (c) complied under
protest while simultaneously pursuing legal remedies to challenge the alleged conflicting
orders.
[65] Thus, this ground of appeal bears no reasonable prospects of success.
28
PUNITIVE SANCTIONS IS WITHOUT MERI T ARGUMENT
[66] The Court's order imposed unprecedented punitive consequences. The respondents
argue that the sanction imposed in the contempt proceedings was overly punitive and
improperly based on the Zuma precedent. They submit that: In Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture v Zuma , the Constitutional
Court imposed direct imprisonment for civil contempt, but only after the respondent had
publicly and unequivocally declared his refusal to comply.
[67] The present case is distinguishable because the respondents did not openly defy the
court but instead sought clarity on their obligations in the face of legal uncertainty. The
contempt order imposed direct punitive consequences rather than being coercive, which
the respondents argue is a departure from established jurisprudence.
[68] This ground of appeal must fail. First, the Municipality, as the respondent, explicitly
sought punitive consequences, and this court, acting within its discretionary powers,
imposed an order that it deemed appropriate in the circumstances. It is trite that a c ourt
has the authority to determine the proper sanction in contempt proceedings, and where a
litigant’s conduct warrants punitive measures, the court is entitled to grant such relief. In
Fakie NO v CCII Systems (Pty) Ltd , the Supreme Court of Appeal co nfirmed that while
contempt sanctions are often coercive in nature, there is no absolute rule precluding
courts from imposing punitive orders when necessary to uphold judicial authority.
29
[69] Secondly, the respondents were afforded multiple opportunities to comply with the
court orders and chose not to do so. They were not sanctioned for an inadvertent failure
to comply —their conduct demonstrated a sustained refusal to adhere to clear judicial
directives. Unlike a part y that seeks genuine judicial guidance when faced with conflicting
obligations, the respondents made no genuine attempt to comply but rather positioned
themselves as entitled to ignore the court’s authority until it suited them to act otherwise.
[70] Thirdly, their comparison to the Zuma case is misplaced. The respondents seek to
distinguish their conduct by arguing that Mr Zuma expressly and unequivocally refused
to comply, while they merely sought clarity. However, the record speaks for itself —their
counsel, during proceedings, conceded that they would not comply with any order issued
by this court, irre spective of its content. This is functionally no different from the stance
taken by Mr Zuma —both the respondents and Mr Zuma made it abundantly clear that
they did not intend to comply with the court’s orders. The fact that the respondents
couched their defiance in legalistic justifications does not alter its effect —a litigant who
refuses to comply under the pretext of uncertainty is no less in contempt than one who
refuses outright.
[71] Fourthly, the sanction imposed was necessary to vindicate the dignity of the court.
Courts do not impose punitive consequences lightly, but where a party repeatedly flouts
judicial authority, it becomes imperative to uphold the integrity of the judiciary. In
Matjhabeng Local Municipality v Eskom Holdings Ltd , the Constitutional Court
reaffirmed that when court orders are disregarded, the courts must act decisively to
30
prevent the erosion of judicial authority. The principle is well established that litigants
cannot be permitted to defy court orders with impunity, as doing so would render the
judicial system toothless and unenforceable.
[72] Finally, the respondents ’ claim that the contempt order was purely punitive rather than
coercive is misguided. A coercive order is effective only if there is a genuine likelihood of
future compliance. However, where a litigant makes it clear that compliance will not occur,
as the respondents did, then a punitive sanction is entirely justified. As the Constitutional
Court held in Zuma, defiance of court orders strikes at the heart of the rule of law, and a
firm judicial response is required to protect the integrity of the judiciary . In this case, a
punitive sanction was the only appropriate response to the respondents ' calculated
defiance.
[73] In light of these considerations, the respondents ’ ground of appeal on this point is
wholly without merit. This court exercised its discretion properly, afforded the respondents
ample opportunity to comply, and imposed a sanction that was necessary and
proportionate to the degree of their non -compliance. The appeal on this ground must
therefore be dismissed.
PUBLIC INTEREST ARGUMENT
[74] The respondents argue that, even if they fail to demonstrate reasonable prospects of
success, there exists a broader public interest that justifies granting leave to appeal. They
contend that this case raises important legal questions regarding how financial institutions
31
should respond to conflicting judicial directives, as well as the proper test for contempt of
court in cases involving legal uncertainty. Additionally, they assert that the Supreme Court
of Appeal or the Constitutional Court should provide guidance on the legal obligations of
banks when municipal funds are at issue.
[75] This argument must fail because it mischaracterises the nature of the case and
overstates the legal uncertainty involved. The issues raised by the respondents do not
present novel or unsettled questions of law —rather, they involve the straightforward
application of well -established principles that have already been decisively clarified by the
highest courts in South Africa.
[76] The test for contempt of court is settled law. The respondents ' attempt to frame their
non-compliance as a matter of legal uncertainty ignores the fact that the Supreme Court
of Appeal in Fakie NO set out the precise test for contempt, which remains binding and
widely applied. That test has been reaffirmed by the Constitutional Court in Pheko
and Matjhabeng , leaving no ambiguity as to what constitutes willfulness and mala fides
in contempt proceedings. The respondents do not identify any gap in the law that requires
further judicial intervention.
[77] The respondents argue that higher courts should clarify the obligations of banks when
handling municipal funds in the face of competing claims. However, this case is not about
banking law or financial regulation —it is about contempt of court. The issue before this
court was whether the respondents wilfully defied clear and binding judicial directives, not
32
whether banking institutions require additional legal safeguards when managing
municipal funds. The argument that this matter has broad public interest implications for
the financial sector is a red herring —the fundamental issue at hand is the respondents ’
deliberate refusal to comply with lawful court orders.
[78] The respondents ’ reliance on public interest as a justification for leave to appeal is
entirely without merit. This case involves no novel questions of law, no unresolved legal
uncertainty, and no broader implications requiring appellate intervention. The law on
contempt is well established, the obligations of financial institutions in the face of
conflicting orders are clear, and the principle that litigants must obey court orders until
varied or set aside is beyond dispute. Th e appeal on this ground must, therefore,
be dismissed.
[79] Before I could even go into hearing the merits of the contempt application two appeal
applications were already brought, the first appeal was brought in terms of section 18(4)
of the Superior Courts Act against my directive in terms of Rule 6(5)(g) and the other and
the other was a general appeal in terms of section 17(6) of the Superior Courts Act against
the remainder of the interim orders I had made prior to the return date. Both the notice to
appeal my directive and application for leave to appeal the i nterim orders were not
successful.
[80] In addition to the concession and submissions made during the hearing by the
respondents counsel (that their clients would not participate in a rule 6(5)(g) inquiry or
further proceedings to mitigate the sanction in the event they were found to be in
33
contempt), the manner and strategy in which the applicants conducted the litigation before
me leads to an irresistible inference that there was no intention to fully comply or already
abide by any adverse coercive order given by me to have the court orders enforced
without any delay. Even so, during the hearing I had brought my concerns to the
respondent’s counsel on enforceability of the orders and the looming possibility of those
orders being rendered moot in the event the Municipality was placed under
administration.
[81] The orders of Phatudi J and Naude Odendaal have now, since the appointment of an
Administrator, (after the granting of my order), become moot and any subsequent
upsetting or substituting my order with a coercive order will be of no value as such an
order will have no practical effect. Moreover , these orders wer e not subject to any appeal
or review at the time the urgent conte mpt application came before me.
[82] It is my considered view that there are minimal to no reasonable prospects that
another court would come to the conclusion that court orders are not to be obeyed by
litigants, as obeying a court order and having respect for courts is a constitutional
imperative which cannot be taken lightly. I cannot conceive that any reasonable court
could disagree with this appraisal.
[83] In addition , it is also my considered view that on the conspectus of all the grounds for
refusal stated above, nothing warrants a higher court’s exercise of its discretion to
entertain this appeal despite the mootness of the orders the applicant’s sought
34
compliance with, which now have been overtaken by subsequent events, namely the
appointment of an administrator to the Municipality.
[84] The notion that this case warrants intervention by the Supreme Court of Appeal or the
Constitutional Court is wholly unsubstantiated. The Supreme Court of Appeal and the
Constitutional Court do not entertain appeals simply because a party disagrees with an
outcome. Appea ls must present genuine legal uncertainty or involve an issue
of constitutional or public significance that requires authoritative resolution. This is not
such a case. In my view, t he respondents' position rests on a mischaracterisation of well -
settled law as unsettled, and their claim that further judicial clarification is required
is without merit.
[85] It is trite that appeals without merit impact not just on the court (that has to increasingly
deal with congested court rolls) and the litigants before the court, but also other litigants
who cue for their day in court whose matters are truly deserving of the attention of this
court or higher court. Unfortunately, such deserving matter must wait in the line whilst we
process unmeritorious and / or appeals, such as the present one.
CONCLUDING REMARKS
[86] Disobedience of court orders is not merely a procedural irregularity —it is an affront to
the rule of law and strikes at the heart of constitutional democracy. A legal system can
only function when its orders are enforced, and parties respect their obligati ons under the
law. Willful defiance of judicial authority is not only unacceptable but fundamentally
corrosive to the administration of justice. As the Constitutional Court has repeatedly
35
emphasised, the judiciary's authority is contingent on its ability to ensure that its directives
are carried out. Where litigants selectively decide which orders to obey and which to
ignore, they subvert the very foundation upon which legal certainty and j udicial integrity
rest.
[87] In this case, the applicants' failure to comply with binding court orders was
compounded by their refusal to furnish the legal advice they relied upon as justification. It
is well established that a party seeking to displace the burden of non -compliance ca nnot
do so through mere assertion. A bald claim that legal advice justified disobedience of a
court order carries no weight unless that legal advice is placed before the court and
properly explained. The law does not permit litigants to evade their respons ibilities
through unsubstantiated claims of legal uncertainty —if legal advice is central to a party’s
defence, that advice must be disclosed or, at the very least, its reasoning must be made
available to the court. They could of course redact the parts of the legal advice that have
nothing to do with the contested issue.
[88] The applicants in this case failed to do either. They did not voluntarily disclose the
legal opinion upon which they claimed to rely, nor did they provide any substantive
explanation of its content or basis. Instead, this court was forced to issue directiv es
requiring the production of such advice, which should have been disclosed from the
outset. The applicants' reluctance to produce it speaks volumes —where a party genuinely
believes it acted lawfully based on sound legal reasoning, it would have no hesita tion in
disclosing that reasoning to vindicate its position. By failing to do so, the applicants offered
36
no evidence for this court to consider, reducing their reliance on legal advice to nothing
more than an empty justification for deliberate defiance.
[89] The problem is further compounded by the fact that if the legal advice purportedly
supported non -compliance with a court order, it was legally indefensible. No legal
practitioner can, in good faith, advise a client that court orders may be ignored at will. The
applicants, as a leading financial institution with substantial legal resources, had every
opportunity to seek a second legal opinion, particularly given the serious legal and
financial implications of refusing to comply with judicial directives. ABSA is not an
uninformed or under -resourced litigant —it has access to eminent counsel and
sophisticated legal teams. There is no credible reason why it could not have sought further
legal advice, particularly if its existing legal counsel had advised it that it could disregard
a court order with impunity. If such advice was in fact given, then it was not only flawed
but reckless, and ABSA ought to have recognised this and taken immediate steps to seek
alternative counsel.
[90] Finally, the applicants cannot shield themselves behind the veil of legal privilege while
simultaneously asserting that legal advice justified their non -compliance. The principle is
well established that privilege cannot be used as both a sword and a shiel d—a party
cannot rely on legal advice to excuse its actions while refusing to disclose that advice to
scrutiny. Where legal advice forms the basis of a defence in contempt proceedings, the
party relying on it must either waive privilege and disclose the ad vice or accept that the
court will not take it into account. The applicants’ attempt to rely on privilege while invoking
legal advice as a justification is self -defeating. The result is that no admissible evidence
37
supports their claim, and the reliance on legal advice amounts to nothing more than an
unsupported assertion that cannot withstand scrutiny.
[91] The applicants’ continued refusal to comply with the orders of this court, their failure
to substantiate their legal defence, and their deliberate strategy of selective disclosure
demonstrate a clear and contumacious disregard for judicial authority. Their conduct does
not warrant judicial sympathy or leniency —it warrants a firm response to vindicate the
dignity of the court and the rule of law. The court cannot allow well -resourced litigants to
manipulate legal process to avoid compliance with orders they find inconvenient. To do
so would set a dangerous precedent, encouraging parties to evade their legal obligations
under the guise of unfounded claims of legal uncertainty and privilege. The law does not
countenance such tactics, and this court will not eit her.
[92] The rule of law is not a polite suggestion, nor is it a luxury reserved for the willing —it
is the bedrock upon which our constitutional democracy stands. Court orders are not
words to be weighed on the scale of convenience, nor are they mere formalities to be
observed at leisure. They are the voice of justice, binding in their command and unyielding
in their authority. To disobey them is not simply to ignore ink on paper; it is to erode the
very foundation of governance, to chip away at the fragile edifice of order that separates
the rule of law from the rule of might.
[93] Yet the applicants, armed with resources vast enough to summon the finest legal
minds in the country, chose not the path of duty but the path of evasion. They wrapped
themselves in the cloak of legal uncertainty, offering no proof, no reasoning —only the
38
hollow echo of their own assertion. They treated the authority of the court as if it were a
mere inconvenience to be weighed against their corporate interests, rather than the
supreme directive of a constitutional democracy. And when called to account, the y
reached not for evidence but for privilege, seeking to wield it as both sword and shield.
But privilege is not a mask behind which defiance may hide; it is not a refuge for those
who seek to evade the burden of explanation. To invoke it while claiming re liance on legal
advice is to speak in riddles before a court that demands only clarity.
[94] This court cannot and will not countenance such conduct. The dignity of the judiciary
is not an abstract notion to be pondered in chambers —it is the force that compels
compliance, that ensures the law is not mocked by the powerful or ignored by the
obstina te. This judgment is not merely a rebuke of the applicants’ conduct; it is a
reaffirmation of the principle that justice is not a river that bends to the will of those who
seek to divert its course. It flows, unbroken, and it must be obeyed.
[95] Consequently , the following order is made :
1. The application for leave to appeal is refused.
2. No order as to costs.
M MORGAN
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
39
APPEARANCES
For the First to Third Respondents:
Adv M Chaskalson SC with Adv L Peter
Instructed by Lowandes Dlamini Incorporated
Email: alex@lowdews.co.za / mp@ddkk.co.za
For the First and Second Applicants:
No Appearance .
Notice to abide filed on 22 January 2025 by Mohale Incorporated.
Email: mohaleinc@gmail.com / charlene@mohalleatt.co.za/
law1pol@mohaleatt.co.za