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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no:518/2023
In the matter between
ANDRE DIEDRICKS APPLICANT
And
ST EVE (PTY) LTD FIRST RESPONDENT
YVONE MAGGY MLOZANA SECOND RESPONDENT
ST EVEN LODGE & SPA THIRD RESPONDENT
MANGAUNG METROPOLITAN MUNICIPALITY FOURTH RESPONDENT
Neutral citation: Andre Die dricks v S t Eve (Pty) Ltd (518/2023)
Coram: Mgudlwa AJ
Heard: 09 May 2024
Delivered: 21 January 2025
Summary: Contempt of Court – requisites for contempt – duty to comply with court
order
ORDER
1. The first, second and t hird respondent s are declared to be in contempt of the court
order dated 6 April 2023.
2. The first and t hird respondents are ordered to pay a fine of R5000 each. The
payment of this fine is suspended in whole for a period of one year on condition that the
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first and t hird respondents comply with the court order dated 6 April 2023.
3. The second respondent is sentenced to a period of 30 days direct imprisonment
which is wholly suspended for a period of one year on condition that she complies with
the court order dated 6 April 2023.
4. The first, second and third respondents are order ed to comply with the court order
of 6 April 2023 immediately.
5. The first, second and t hird respondents shall pay costs on this application, and
such costs shall include costs of counsel on scale A as contemplated in r ule 67A of the
Uniform Rules of the Court.
JUDGMENT
Mgudlwa AJ:
Introduction
[1] This matter concerns the question whether the first, second and third respondents
(the respondents) are guilty of contempt of court for their failure to comply with the court
order that this C ourt granted on 6 April 2023 in case number 518/2023, per Naidoo J.
The fourth respondent did not participate in these proceedings and no relief is sought
against it.
[2] The applicant seeks the following relief in the notice of motion:
‘1.1 That the First, Second and Third Respondent be declared to be in contempt of the
court order dated 6 April 2023.
1.2 That the Second Respondent and/or Third Respondent be committed to prison for
contempt of court or such fine as the court may determine.
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1.3 That the First, Second and Third Respondent comply with the court order of 6 April
2023 immediately.
1.4 That the First, Second and Third Respondent pay the costs of this application on the
scale as between attorney and own client scale, the one to pay, the other s to be
absolved. ’
The Parties
[4] The applicant is a medical doctor , residing at 19 York Road, Waverley,
Bloemfontein, Free State, and an owner of the property thereof which is in close
proximity to Portion […] Erf 1 […], Bloemfontein, Free State Province, known as 2[ …]
Y[…] R[…], Waverly, Bloemfontein, Free State Province ( the erf ). This property is the
subject of this application.
[5] The first respondent is St Eve (Pty) Ltd, a private company registered according to
the laws of the Republic of South Africa being the registered owner of the erf. The
second respondent is Yvonne Maggy Mlonzana, a major female and director of the first
respondent . She is in control of and responsible for the subject property and the
operations conducted under the name of the first and t hird respondents .
Background
[6] On 29 March 2023, the applicant approached this court for an application for an
interdict seeking a relief against the r espondents in respect of the zoning of the property
which is the subject matter , wherein the matter was not opposed by the r espondents and
an order by agreement was made by Naidoo J on 6 April 2023 in the following terms:
‘IT IS ORDERED BY AGREEMENT BETWEEN THE APPLICANT AND FIRST AND
SECOND RESPONDENT THAT:
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1. The First and Second Respondents are interdicted and restrained from conducting
or allowing any other person to conduct a business from or use Portion […] Erf 1 […],
Bloemfontein, Free State Province known as 2[ …] Y[…] R[…], Waverly,
Bloemfontein, Free State Province, for use other than the zoning of the property, being
“Residential 1”.
2. The First and Second Respondent shall pay the costs of the application on a party
and party scale, such costs to exclude the appearance on 2 March 2023 jointly and
severally one paying the other to be absolved. ’
Applicant’s case
[7] This application for contempt of court is predicated on the following grounds:
i. The applicant alleged that during October 2023 he contacted his legal
representative to advise him that the r espondents still have not complied with the court
order and continued to conduct and allow the conducting of business in the property. Consequently, his legal representative contacted the r espondents’ attorney to advise him
of the alleged contravention. Furthermore, he wrote a letter to the respondent’s attorney
about the alleged contravention . The letter was acknowledged by the r espondents’ legal
representative a subsequent undertaking was made by him to consult with his client
about the matter.
ii. Despite engaging the r espondents’ legal representative, on or about end of
October 2023, the respondents had a sizeable function for a courier company which
resulted in a variety of cars blocking the roadway and resulted in excessive noise.
iii. The applicant further alleges that on or about the weekend of 3 November 2023,
the respondents held a pool party which also resulted in a variety of cars blocking the
roadway and resulted in excessive noise. In amplification of the allegation, the applicant
attached photos allegedly taken on the same date.
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iv. Lastly, the applicant alleges that on 11 November 2023, the r espondents hosted a
massive function at the same premises. This prompted him to contact his legal
representative with instructions to lodge an application for contempt of a court order , as
the situation was getting worse.
The Respondents’ response
[8] The respondents , in response to the allegations , deny any allegation of contempt
of the court order as alleged by the a pplicant and deny that the second respondent
deliberately refused to comply with the court order. In explicating her response, the she
firstly alleges that the applicant’s case is deliberately created, racially motivated and not
arising from a genuine grievance (damage suffered) by the a pplicant . She amplified
these allegations by setting out a brief background of the property in question. According
to her, she bought the pr operty from a company called Capitaux Financial Service
(Capitaux ) in February 2022. Prior to the sale of the said property, Capitaux was
conducting business on the premises for more than seven years and the a pplicant never
approached the court to seek rezoning of the property. Furthermore, before the transfer
into the first respondent’s name, there was a joint period of almost nine year s of business
at the premises and the a pplicant never lodged any complaint against Capitaux or the
respondents for rezoning of the premises.
[9] According to the second respondent , when they bought the property from the
previous owner, they genuinely believed that there was no issue with using the premises
for business purpose as this was the case for the preceding combined nine years. She
states further that there are many other businesses in the same street where the
respondents’ premises are situated which operat e without proper zoning. In addition,
other neighbors have also held functions at their premises without being dragged to court
for zoning. It is alleged further that the a pplicant has also entertained his guests on his
premises .
[10] The second respondent denies being ignorant of the requirements related to
zoning non -business zones into business zones. According to her, they have engaged
the fourth respondent, the Mangaung Metropolitan Municipality, and are still busy with
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the process of rezoning. In support of this explanation, the second respondent attached
the relevant application for rezoning documents .1
Issue
[11] The issue for determination in this application is whether the respondents ’ conduct
is wilful or mala fide. Furthermore, the central question is whether the r espondents
should be committed to prison for faili ng to comply with the court order made on 6 April
2023.
Applicable Law
Civil contempt of court
[12] In Samuels v Hlophe,2 the Supreme Court of Appeal at para. 17 said the following:
‘All South Africans have a duty to respect and abide by the law. As the Constitutional
Court stated in 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
Others3, courts ‘unlike other arms of the state . . . rely solely on the trust and confidence
of the people to carry out their constitutionally mandated function’ which is to uphold, protect and apply the law without fear, favour.
4 Disregard of orders is an attack on the
very fabric of the rule of law.’
[13] The locus classicus in respect of civil contempt is the decision of Fakie NO v CCII
Systems (Pty) Ltd5 and Cameron JA indicated as follows:
(a) The essence of contempt of court ‘lies in violating the dignity, repute or
authority of the court. ’6 The offence has been approved by the constitutional court
as the rule of law requires the dignity and authority of the court to be maintained.
1 See RA1 and RA2 of the second respondent answering affidavit.
2 Samuels v Hlophe [2023] ZASCA 49 .
3 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of the State v Zuma and Others [2021] ZACC 18; 2021 (9) BCLR 992 (CC) .
4 See S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 BCLR 449 (CC) para 17.
5 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 42.
6 Ibid para 6.
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(b) The test for when disobedience of a civil order constitutes contempt has come to be state as whether the breach was committed “ deliberately and mala fide”. A
deliberate disregard is not enough, since the non- complier may genuinely, albeit
mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids infraction. Even a refusal to comply that is unreasonable may be bona fide (though unreasonableness could
evidence lack of good faith).
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(c) These requirements – that the refusal to obey should be both wilful and mala
fides, and that unreasonable non -compliance, provided it is bona fides , does not
constitute contempt - accord with the broader definition of the crime, of which non-
compliance with civil orders is a manifestation. They show that the offence is
committed not by mere disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or authority that this evinces.
Honest belief that non- compliance is justified or proper is incompatible with that
intent.
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(d) The onus is that of the criminal standard of proof being proof beyond
reasonable doubt.9
(e) Once an applicant shows an order in existence and that it came to the notice or attention of the respondent and that the respondent had disobeyed or neglected to
comply with the order, wilfulness and mala fides will be inferred, and the applicant
will then be entitled to a committal order. An evidentiary burden then rests upon a
respondent in relation to the aspect of wilfulness and mala fides. A respondent must advance evidence that establishes a reasonable doubt as to whether non-compliance with such order was wilful and mala fides. A respondent does not bear a legal burden to disprove wilfulness and mala fides. If the respondent fails in
discharging such evidentiary burden, contempt of the court order will be established beyond reasonable doubt.
7 Ibid para 9.
8 Ibid para 10.
9 Ibid para 33.
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[14] In para 42 the Court further held the following:
‘4. But once the applicant has proved the order, service or notice, and non-
compliance, the respondent bears an evidential burden in relation to wilfulness
and mala fides. Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non- compliance was wilful and mala fides,
contempt will have been established beyond reasonable doubt. ’
[15] I deem it apt to mention that the following elements must be established:10
(a) the order must exist;
(b) the order must have been duly served on, or brought to the notice of the
alleged contemnor;
(c) there must have been non- compliance with the order; and
(d) the non -compliance must have been wil lful or mala fide.
Analysis
[16] It is trite law that the applicant must prove all the aforementioned requirement s
beyond reasonable doubt and the r espondents bear the evidential burden to rebut the
allegation that their conduct of non- compliance was not wilful or mala fide. Gleaned from
the respondents’ answering affidavit, it is common cause that the first two requisites ,
being the existence of the order and knowledge thereof , are not in dispute.
10 See Pheko & others v Ekurhuleni City 2015 (5) SA 600 (CC)
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[17] With regards to the third requirement which relates to non-compliance, the
applicant’s case is pivoted on the following events which were allegedly hosted by the
respondents at the premises in question:
(i) On or about the end of October 2023, a big function for a courier company
which resulted in a variety of cars blocking the roadway and resulted in excessive
noise;
(ii) On 3 November 2023, a pool party which allegedly resulted in a variety of
cars blocking the roadway and resulted in excessive noise.
(iii) On 11 November 2023, a massive party which allegedly resulted in a total
disregard of the neighbou rs.
[18] I now turn to the response given by the second respondent in her answering
affidavit , with specific reference to para 21, which reads as follows:
‘21. I deny the contents of these paragraphs. The Applicant allege d that there was
excessive noise at the premises but submits no evidence of such noise. There is no
allegation as to the type of noise, the degree of its persistence, the locality involved and
the times when the noise is heard. There is further no allegation or evidence of the harm
suffered as a result of noise, i.e, whether it was material or substantial and not merely
slight or trivial.’
[19] In my considered view, on assessment of this paragraph, the second respondent
does not categorically deny that the alleged three events were not held at the relevant
premises. Instead, the response relates more to the extent of harm suffered as a result of
the noise. Furthermore, the second respondent’s admission11 that there were people at
the premises, and they were guests of the f irst respondent , buttresses the allegation that
the functions were held at the premises. It is for this reason that I am satisfied that the
applicant has succeeded in proving beyond reasonable doubt that there was non-
compliance of the court order by the r espondents .
11 See. Paragraph 23 of the Second Respondent answering affidavit .
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[20] I deem it apposite to mention that the second respondent does not categorically
deny that the r espondents conducted the alleged business at the premises . Instead, she
allege s that the first application and the current one are malicious and racially motivated.
In explicating this allegation, the second respondent asserts that the property was bought
from Capitaux and they have been operating business for a period of seven years.
Additionally, before the transfer of the property, they leased the property from Capitaux
for a period of two years. According to the second respondent, the applicant never
lodged a complaint about rezoning of the premises for the whole period of nine years. In
essence, they genuinely believed that when they bought the property from the previous
owner, there were no issues with using the premises for business purpose as this was
the case for the preceding combined nine years.
[21] The applicant , in response to the allegation that Capitaux conducted business for
a period of seven years , correctly argued that this assertion should be regarded as
hearsay since the r espondents failed to attach a confirmatory affidavit by Capitaux . In my
view, even if one accepts that Capitaux conducted business for the preceding period of
seven year s, it remains of cardinal importance to note that if the order has not been set
aside or varied, the r espondents had no option but to fully and diligently comply with the
court order made on 6 April 2023. Additionally, the genuine belief that the premises could
be used as business premises as it has been the case for the past nine years prior to the
sale, does not , in my view, justify non- compliance with the court order. Similarly, if the
court was to accept that the a pplicant delayed the application and that the matter was
steeped in racism, that in itself cannot obliterate the respondent’s obligation to comply
with the court order.
[22] The other reason averred by the r espondents to rebut the fourth requirement ,
being that their non- compliance was not wilful or mala fide is the fact they have engaged
the municipality and are busy with the process of rezoning. They attached documentary
proof of the rezoning application together with the municipality rezoning Residential 1
approval. On consideration of the available evidence, the application is still pending and
the order made on 6 April 2023 is still valid, and the Court therefore finds this averment
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to fall short of establishing a reasonable doubt that their non- compliance was wilful or
mala fide.
[23] The a pplicant’s legal representative relied on Wightman t/a J W Construction v
Headfour (Pty) Ltd and Another12 case regarding assessment of disputes of facts .
Reference is made inter alia to paragraph 11, where the court said the following:
‘The first task is accordingly to identify the facts of the alleged spoliation on basis of which
the legal disputes are to be decided. If one is to take the respondents’ answering affidavit
at face value, the truth about the preceding events lies concealed behind insoluble
dispute. On that basis the appellant’s application was bound to fail .’13
Furthermore, he argued that the respondents have knowledge of the events
complained of and the inter -relationship between them. It is expected of the
respondents to play open cards with the court. I find these submissions to
resonate with the alleged contempt of court. I am also satisfied that the a pplicant
succeeded in proving all for requisites of contempt of court beyond reasonable
doubt.
[24] Upon proper consideration of the evidence, I am satisfied that the r espondents
only provided reasons for not complying with the court order, which in my view fall short
of surmounting a threshold of justifying non- compliance. The fact that they were aware of
the order and that the legal representative of the a pplicant wrote a letter to the ir attorney
to notify them about failure to comply with the court order, and even after the latter
replied to the notification letter , they continued with their business as usual. In my view,
this constitutes wilful and mala fide non-compliance. The respondents failed to provide
any factual basis that their refusal to comply with the order of Naidoo J was in anyway
bona fides.
[25] In my view, there is no case made for a punitive costs order. As a result , costs
12 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) .
13 Ibid para 11.
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must follow the results.
Order
[28] In the premises, I make the following order:
1. The first, second and third respondent s are declared t o be in contempt of the court
order dated 6 April 2023.
2. The first and third respondents are ordered to pay a fine of R5000 each. The
payment of this fine is suspended in whole for a period of one year on condition that the
first and third respondents comply with the court order dated 6 April 2023.
3. The second respondent is sentenced to a period of 30 days direct imprisonment
which is wholly suspended for a period of one year on condition that she complies with
the court order dated 6 April 2023.
4. The first, second and third respondents are order ed to comply with the court order
of 6 April 2023 immediately.
5. The first, second and third respondents shall pay costs on this application, and
such costs shall include costs of counsel on scale A as contemplated in r ule 67A of the
Uniform Rules of the Court.
MGUDLWA AJ
Appearances
For the applicant : Advocate A Sanders
Instructed by: Blair Attorneys
32 1st Avenue
Westdene
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Bloemfontein
For the 1st, 2nd and 3rd respondents : Advocate N Plaatjies
Instructed by: Mlonzana Attorneys
12 Reid Street
Westdene
Bloemfontein