REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-013976
DATE : 17 February 2025
In the matter between:
NTSIKELELO KWEZI N O First A pplicant
BULELWA JEANIE MKANGISA N O Second Applicant
SIBUSISO PETER -PAUL NGWENYA N O Third Applicant
and
ODWA BONGILE KUPISO Respondent
Neutral Citation : Kwezi N O and Others v Kupiso (2025-013976 ) [2025]
ZAGPJHC --- (17 February 2025)
Coram: Adams J
Heard : 12 February 2025
Delivered: 17 February 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email , by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:30 on
17 February 2025.
(l) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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Summary: Civil procedure – urgent application – for contempt of court order –
the applicant in civil contempt of court proceedings required to prove beyond a
reasonable doubt (a) the Court Order, service thereof and / or actual knowledge
thereof; (b) non -compliance with the order; and ( c) wilfulness or mala fides –
once knowledge of and non -compliance with the order is established, the
respondent then bears an evidential burden to rebut wilfulness and mala fides –
In casu – applicants met all the requirements – respondent found to have been
in contempt –
Urgent application granted .
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ORDER
(1) The applicants ’ non-compliance with the Uniform Rules of Court relating to
form, service and prescribed time periods, is condoned and this matter is
allowed to be heard as one of urgency in terms of Uniform Court Rule
6(12).
(2) The respondent is held to be in contempt of the order of this Court granted
under case number: 2024 -130701 , by agreement between the parties, on
19 November 2024 by Dlamini J, in that he (the respondent) dispatch ed
the letters dated 15 and 30 January 2025 respectively to the founder of the
Peaker Trust, First National Bank, ABSA Bank and the Master of the High
Court .
(3) For his contempt of court, the respondent is fined R50 000, suspended on
condition that he desist s and refrain s forthwith from any further conduct
which amounts to contempt of the 19 November 2024 court order and on
condition that the respondent does not, directly or indirectly, or in any
other manner further breach the said order .
(4) The respondent shall pay the applicants ’ cost of this opposed urgent
application , including Counsel’s charges on scale ‘C’ of the tariff applicable
in terms of the Uniform Rules of Court .
JUDGMENT
Adams J :
[1]. On 19 November 2024 this court (per Dlamini J), by agreement between
the parties, granted an order under case number: 2024 -130701, which reads in
the relevant part as follows: -
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‘(1) The applicants, the first and the second respondents, as trustees of the Peaker
Trust (“the Trust”), agree and undertake to pay an ex-gratia amount of R3 million
to each of the first and the second respondents.
(2) The parties referred to in paragraph 1 agree to sign a resolution of the Trust
authorising the payment contemplated in the paragraph above.
(3) The first and second respondents shall forthwith resign as Trus tees of the Trust
and from all its investee companies and shall cooperate and take all action
necessary to effect their resignation from the Trust and the investee companies ,
including being removed as bank signatories of the said entities.
(4) Within five court days from the date of this order, the first and second
respondents shall deliver to the applicants all the requisite resignation letters,
resolutions , accompanied by an irrevocable power of attorney authorising the
applicants as the remaining trustees to sign all necessary forms and documents
to effect the resignation of the first and second respondent.
(5) Upon receipt of the resignation letters, resolutions and the power of attorney
referred to in paragraph 4 or any necessary document required to effect their
resignation from the Trust and the investee companies contemplated herein, the
applicants shall cause the Trust to effect the payment to the first and second
respondents as stated in paragraph 1.
(6) The first and second respondents undertake not to cooperate with any third party
whatsoever to the detriment of the Trust and any of its investee compan ies and
shall not divulge any information that they obtained during their te rm as trustees
of the Trust and the directors of its investee companies .
(7) This settlement is in full and final settlement of al l claims, whether civil or
criminal , that may be pending between the patties.
(8) The Parties agree that each party shall bear its own costs. ’ (Emphasis added)
[2]. The applicants in that case were the first and the second applicants in
this matter and the first respondent in that case is the respondent in casu . All of
the aforegoing parties were trustees of the Peaker Trust as and at the time the
19 November 2025 order was granted.
[3]. In issue in this opposed urgent application is whether the respondent, in
addressing communiqués to various institutions and entities during January
2025, has acted in contempt of the aforegoing order. The relevant portion of the
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court order , which, according to the applicants, the respondent is in breach of is
paragraph 6. Therefore, the question to be considered by me is whether the
respondent intentionally cooperate d with a third party ‘to the detriment of the
Trust and any of its investee companies ’ and whether he has divulge d any
information that he obtained during his term as trustees of the Trust and the
director of its investee companies. These issues are to be decided against the
factual backdrop as set out in the paragraphs which follow.
[4]. However, before dealing with the facts in the matter it may be apposite at
this point to have a brief overview of the applicable legal principles relating to
contempt of court to place in context the issues which require adjudication. And
in that regard, the leading authority remains Fakie v CCII Systems (Pty) Ltd1, in
which the Supreme Court of Appeal (SCA) held as follows : -
‘The essence of contempt of court ex facie curiae is a violation of the dignity, repute or
authority of the court. … Deliberate disregard is not enough, since the non -complier
may genuinely, albeit mistakenly, believe that he is entitled to act in the way he claimed
to constitute the contempt. … Even a refusal to comply that is objectively
unreasonable, may be bona fide.’
[5]. It is trite that t he applicant s are required to prove three requirements, that
being a valid and extant court order; knowledge on the part of the respondent of
the existence of the order and thirdly wilful , mala fide and unreasonable non -
compliance with the court order , before it can be said that the conduct of the
respondent constitute s contempt of court. As regards the question of the
unreasonableness of the non -compliance, Consolidated Fish Distributors (Pty)
Ltd v Zive and Others2 held that ‘ even though a respondent may be wilful, and
admittedly so, he may yet escape liability if he can show that he was bona fide
in his disobedience, that is, that he genuinely, though mistakenly, believed that
he was entitled to commit the act, or the omission, alleged to be a contempt of
Court ’.
1 Fakie v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) .
2 Consolidated Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (CPD) at 524 D .
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[6]. In Fakie (supra) Cameron JA held that the applicant in civil contempt of
court proceedings is required to prove beyond a reasonable doubt the following
requirements: (a) the Court Order, service thereof and / or actual knowledge
thereof ; and (b) non-complian ce with the order . Once these are established, so
Cameron JA held, the respondent then bears an evidential burden to rebut
wilfulness and mala fides , by raising only a reasonable doubt, which is the test
applicable in criminal matters.
[7]. That brings me back to the facts in the matter. In that regard, the
existence and the wording of the court order and the fact that the respondent
has knowledge of same, are common cause. The respondent does however
take issue with the contention by the applicants that he is in contempt of
paragraph 6 of Dlamini J’s order. The case on behalf of the respondent is that
the applicants have not proven beyond a reasonable doubt his (the
respondent’s) non -compliance with the court order . From this it follows that the
respondent denies wilfulness and male fides .
[8]. On 11 December 2025 – about four weeks after the Dlamini J Order –
T Mpumlwana and Associates , the present attorneys of record of the
respondent, wrote to the trustees of the Peaker Trust , ostensibly on behalf of an
entity by the name of Masintinge Investments CC (‘Masintinge’) , requesting
certain information relating to the Trust . Masintinge is named as a possible
beneficiary of the Peaker Trust in the Deed of Trust of the Peaker Trust. The
communiqué was addressed to the Trustees at the instance of the respondent –
about this there can be no doubt.
[9]. This letter alleges inter alia that the trustees of the Peaker Trust misled
Masintinge about the nature of the investments the investee companies are
involved in. The letter also insinuates other irregularities in the running and the
administration of the Trust, and the contents of the demand are clearly based
on information obtained by the respondent whilst he was a Trustee of the
Peaker Trust from about June 2024 to November 2024, when he resigned his
post as a Trustee in accordance with the Dlamini J order. In my view, this
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missive is the first violation of paragraph 6 of the said order in that the
respondent had clearly cooperate d with a third party, being Masintinge, nay he
instigated the said company, to the detriment of the Trust . The prejudice to the
Trust as a result of the respondent’s aforesaid conduct is self -evident.
Moreover, it is as clear as day that the respondent had divulge d information to
Masintinge which he obtained during his term as trustees of the Trust .
[10]. It did, however, not end there. On 15 January 2025, the applicants
received an electronic mail from the respondent , copying in third parties ,
confirming in as many words that he is the force behind Masintinge and
threatening to address a communication to Engie Southern Africa (Pty) Ltd and
its attorneys, the Development Bank of Southern Africa, Absa Bank Limited,
First National Bank Limited and the Master of the High Court, Johannesburg , in
which he would presumably bring to the attention of these entities alleged
irregularities in the running of the Trust. The applicants were given an ultimatum
to ‘find a solution to all the issues raised in the [15 December 2024] letter ’,
failing which the respondent intended ‘… [issuing] the letter on Monday, 20
January 2025 and proceed with the intended Court application …’. The
respondent also threatened to instruct First National Bank and Absa Bank
Limited to proceed to in effect freeze the business bank accounts of the Trust.
[11]. On the same day, that being 15 November 2025, T Mpumlwana &
Associates, also addressed a missive to the applicants, ostensibly on behalf of
Masintinge, demanding inter alia ‘a written undertaking from the Trustees for the
time being of the Peaker Trust, no later than Frida y, 24 January 2025 , that they
will not adopt any resolution for payment of distributions, awards, grants and/or
any payment (administration fees or not) to the Named Beneficiaries and any
Beneficiary for that matter (including [Masintinge] ), pending the outcome of an
application to be brought on a semi -urgent basis by [Masintinge] for the
reconstitution of the board of trustees of the Peaker Trust in a manner set out in
the Broad -Based Black Economic Empowerment Act, No 53 of 2003 and
Codes of Good Practice alternatively, for the appointment of an Independent
Trust Administrator that will manage and run the affairs of the Peaker Trust so
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as to achieve the objectives set out in clause 5 of the Deed of Trust of the
Peaker Trust ’.
[12]. Other demands were also made in the said letter in relation to a stop on
the further transacting of the business bank accounts of the Trust.
[13]. A copy of the aforegoing letter was send by T Mpumlwana & Associates
to Eng ie Southern Africa, the Master of the High Court, Johannesburg, First
National Bank and ABSA Bank Limited . It goes without saying and it is self -
evident that the conduct by the respondent, disguised as actions by Masintinge,
has the potential to severely prejudice the Trust and, if he is allowed to persist
with those actions, the Trust and its further administration will be severely
prejudiced. It is, as contended by the applicants, that the respondent is using
Masintinge to disrupt the efficient running of the Peaker Trust. And he does that
utilising the knowledge he gained as a trustee of the said Trust and as a director
in the investee companies to undermine the Trust.
[14]. In my view, it cannot be gainsaid that the respondent, by his
aforementioned conduct, did precisely what he undertook not to do as per the
Dlamini J order. By writing to the founder of the Peaker Trust , Engie, knowing
that the trustees are having a difficult engagement with the founder, the
respondent is deliberately in contempt of the court order. In that regard, there is
currently, to the knowledge of the respondent, an ongoing High Court case
between the trustees and Engie. He played a crucial role in assisting the
trustees in their defend against the lawsuit filed by Engle.
[15]. Moreover, t he letter from the T Mpumlwana & Associates is disparag ing
of the trustees , and by sending a copy of the said communication to the
business bankers of the Trust, the respondent undoubtedly breached the terms
of the court order by Dlamini J. The respondent , through his attorneys, also
urged the Master of the High Court not to issue any further letters of authority.
How prejudicial and detrimental will such advices to these institutions be, I ask
rhetorically. The respondent acted as the secretary of the Peaker Trust, a role
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akin to that of a Company Secretary. He is fully aware of the governance
requirements of the trust deed, and he is abusing his knowledge and acting to
the detriment of the Trust.
[16]. The final straw for the applicants came o n 30 January 2025, when the
respondent's attorneys wrote to the Master of the High Court , requesting the
Master to remove the trustees of the Peaker Trust . In the communication to the
Master’s office, further disparaging remarks are made of and about the
applicants . There is, to my mind, no doubt that the allegations made by and on
behalf of the respondent are damaging and detrimental to the interest of the
Trust and its beneficiaries. I reiterate that this conduct violates the letter and the
spirit of the Dlamini J order.
[17]. For all of these reasons, I conclude that the respondent, in sending out
these foregoing communications to the entities mentioned, is in contempt of the
order of this Court dated 19 November 2024. T he applicant s have, in my view,
proven all of the elements necessary to have the respondent declared to be in
contempt. I reject the convoluted defences and legal points raised by the
respondent in opposition to this application. There is no merit in any of these
defences and it is not necessary for me to deal wi th those defences in any
detail. The simple point is that factually the respondent has wilfully and mala
fide breached the court order, underpinned by an undertaking he gave to the
applicants, in that he initiated and instigated processes which are detrimental to
the Trust. Moreover, the undisputed fact of the matter is that the respondent
divulged and used information – again to the detriment of the Trust – which
information he had obtained during his term as a trustee of the Trust and as a
director of the investee companies of the Trust.
[18]. Wilfulness and mala fides can and should, in my view, be inferred from
the fact that the respondent knew that his conduct amounted to contempt of
court. This is why he disguised his unlawful contemptuous actions as those of
Masintinge and not of himself.
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[19]. The respondent also opposed the application on the basis that it lacks
urgency. I disagree. Whilst the contemptuous conduct on the part of the
respondent started during December 2024, the applicants only became aware
of his involvement in the unlawful contemptuous communications addressed to
the Trustees and other entities during January 2025. By all accounts, the
applicants have approached this court not with undue delay and at the first
available opportunity . There is no self -created urgency, as contended by the
respondent. I am satisfied, all things considered, that the applicants ’ application
is urgent.
[20]. The application should therefore be granted and the costs should follow
the suit.
Order
[21]. In the result, I make the following order:
(1) The applicants’ non -compliance with the Uniform Rules of Court relating to
form, service and prescribed time periods, is condoned and this matter is
allowed to be heard as one of urgency in terms of Uniform Court Rule
6(12).
(2) The respondent is held to be in contempt of the order of this Court granted
under case number: 2024 -130701 , by a greement between the parties, on
19 November 2024 by Dlamini J, in that he (the respondent) dispatch ed
the letters dated 15 and 30 January 2025 respectively to the founder of the
Peaker Trust, First National Bank, ABSA Bank and the Master of the High
Court .
(3) For his contempt of court, the respondent is fined R50 000, suspended on
condition that he desists and refrains forthwith from any further conduct
which amounts to contempt of the 19 November 2024 court order and on
condition that the respondent does not, directly or indirectly, or in any
other manner further breach the said order .
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(4) The respondent shall pay the applicants’ cost of this opposed urgent
application, including Counsel’s charges on scale ‘C’ of the tariff applicable
in terms of the Uniform Rules of Court.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 12 February 2025
JUDGMENT DATE: 17 February 2025 – Judgment handed
down electronically
FOR THE APPLICANT S: S Mahlangu
INSTRUCTED BY: Mdyesha Ndema Attorneys Inc,
Fourways , Randburg
FOR THE RESPONDENT : N Zwane
INSTRUCTED BY: T Mpumlwana & Associates ,
Morningside , Durban