SAFLII Note: Certain personal/private details of parties or witne sses have been redacted from this document
in compliance with the law and SAFLII Pol icy



THE HIGH COURT OF SOUTH AFRICA
JUDGMENT
(EASTERN CAPE DIVISION, MAKHANDA)

Reportable
CASE NO.: CA 95/2024

In the matter between:

I[...] L[...] L[...] Appellant

And

L[...] V[...] H[...] Respondent

Coram : NHLANGULELA AJP, NORMAN J and NKELE AJ
Heard : 28 OCTOBER 2024
Delivered : 25 FEBRUARY 2025
Summary : Appeal against order dismissing application for contempt of court order -
mootness of the relief warranting determining the appeal in the interest of justice -
onus to prove the requisites for contempt of court order thrust upon applicant on a
balance of probabilities - the discharge of which obligates the contemnor to
discharge evidential burden that breach of court order was not wilful and mala fide -
Plascon -Evans rule reaffirmed - appeal succeeds in part - each party to pay her costs.

ORDER

On appeal from : the judgment of LOWE J sitting as a court of first instance.

1. The appeal succeeds with each party to pay her costs.

2. The respondent’s cross -appeal is withdrawn with costs.

3. Each party to pay her costs of the application for leave to appeal, inc luding the
costs for the petition against refusal of leave to the Supreme Court of Appeal.

4. The order of the court a quo is set aside, and is replaced by the following new
order:

3.1 It is declared that the respondent is in breach of the order gra nted by Van Zyl J
on 8 July 2022.

3.2 Each party to pay her costs of the application for contempt of the court order.

JUDGMENT

Nhlangulela AJP (Norman J and Nkele AJ concurring)

Introduction:

[1] This is an appeal against the judgment by Lowe J dismissing the appellant’s
application for contempt of court with costs. It comes before this court with the leave
of the Supreme Court of Appeal.

[2] The appeal raises two issues for determination. The first, is whether the relief
sought by the appellant in the appeal has been overtaken by events. The second, is
whether the respondent is liable to pay costs of the appeal and the application for
leave to appeal the court order granted by Van Zyl DJP on 8 July 2022 compelling
her to hand over to the appellant the original identity document, passport and bank
card (the documents) belonging to the appellant.

[3] The order of Van Zyl DJP reads as follows:

‘1. A Rule Nisi do issue calling upon the first to fourth respondents to show cause on
the 16th day of August 2022 at 10h00 or as soon thereafter as the matter may be
heard, why a final order should not be made in the following terms: -

1.1. Interdicting and restrai ning the first, second and/or third respondents, or
any of the first and/or second respondent's related companies, which is
controlled by the first and/or second respondent, from dissipating funds in the
sum of R 9 120 000.00, transferred from the applican t's bank account held
with the fourth respondent ("FNB") to unknown accounts by the first and/or
second respondent on 1 December 2021 and 4 July 2022, respectively;

1.2. The first, second and/or third respondents to immediately pay the sum of
R 120 000.00 (transferred on 4 July 2022) to the applicant's bank account
held with FNB under account number: 6[...] (hereinafter referred to as "the
Account");

1.3. The first and/or second respondents to immediately hand over to the
applicant or her attorneys, the A pplicant's original identity document, passport
and/or any bank cards;

1.4. The fourth respondent to furnish the applicant and/or her attorneys of
record with the detailed bank statements (inclusive of all information in
relation to the names of the holde rs of bank accounts, bank account numbers,
the amounts transferred and the name of the banking institution at which such
bank accounts are held), in respect of all transactions made on the Account
for the period of January -2020 to July 2022, inclusive of t he details of the
bank account numbers, including, but not limited to:

1.4.1. the bank account to which the sum of R 9 000 000.00 (Nine
Million Rand) (under reference Investment inheritance) was transferred
to on 1 December 2021;

1.4.2. the bank account to which the sum of R 120 000.00 (ONE
HUNDRED AND TWENTY THOUSAND RAND) was transferred on 4
July 2022 (under reference " I[...] Safety").

1.5. Consequent upon the details and information provided in paragraphs
1.4.1 and 1.4.2 above, ordering and directing the fourth respondent to
immediately freeze and/or block any and all transactions from the accounts
identified in paragraphs 1.4.1 and 1.4.2 above (the recipient accounts), and
provide the applicant with copies of the bank statements in respect of such
account, insofar as those accounts are held with the fourth respondent ("the
interdicted activities").

1.6. The aforementioned orders remain in place pending the final
determination of an application for payment to be instituted by the applicant
against the first, second and/or third Respondents and/or any entity or person
identified in paragraphs 1.4 and 1.5 above, for:

1.6.1. A statement and debatement of the account;

1.6.2. Payment of the sum of R 9 000 000.00 or such amount that is
found to be due to the applicant as a result of the statement and
debatement of the account.

1.6.3. In the event of the ap plicant failing to institute the aforesaid
proceedings within a period determined by this Court, the interdictory
relief granted will lapse.

1.7. Directing the first, second, and third respondents, jointly and severally, to
bear and pay the costs of this application, on the attorney and client scale.

2. Pending the final determination of this application, and on the return day of the
rule nisi, the relief sought in terms of paragraphs 1.1 to 1.5 above (including all
subparagraphs, except paragraph 1.7) op erate as an interim order with immediate
effect.

3. The applicant is authorised to supplement the papers and join such banking
institution, which may become an interested party, to these proceedings on an
urgent basis, and apply for an anti -dissipation or der against such banking institution
relevant to the investigation in 1 .4.1 and. 1.4.2 above…’

Litigation history

In the court a quo:

[3] Two application proceedings were brought by the appellant, an 84 year old
female, against the respondent, her daug hter. On 8 July 2022, she brought an anti -
dissipation application on the basis of urgency, seeking a relief that the respondent’s
bank account be frozen and the funds therein be preserved pending an investigation
as to where the appellant’s funds were tran sferred by the respondent, and that the
respondent be ordered to immediately return the appellant’s documents. This
application served before Van Zyl DJP, who granted a rule nisi , incorporating an
interim relief calling upon the respondent to show cause on 16 August 2022 as to
why the anti -dissipation application order should not be made final. The respondent
opposed this application, resulting in the rule nisi being extended on numerous
occasions: on 19 July 2022 before Da Silva AJ; on 16 August 2022 befor e Hartle J;
and on 27 October 2022 before Potgieter J.

[4] Significantly, when the matter served before Hartle J, the parties settled the order
of Van Zyl J almost entirely. What remained for determination were the issues of
whether the appellant was enti tled to a final order for the return of her document and
the costs. On 27 October 2022, the parties agreed that the remaining issues be
referred to trial for the hearing of oral evidence. Accordingly, Potgieter J granted the
order with the rule nisi extend ed to 20 July 20231.

[5] Gqamana J commenced with the hearing on the disputed issues of whether the
respondent’ s non -compliance with the court order was willful and mala fides . The
oral witnesses testified. However, the proceedings were concluded without the
respondent having testified to confirm her version as put to the appellant and her
witnesses that the respon dent was not in possession of the documents at the time
when the anti -dissipation application served before Van Zyl DJP. In a judgment that
was delivered on 1 February 2024, Gqamana J made a finding of fact that on the
corroborated version of the appellant that the respondent was keeping the original
documents in a safe for safe keeping, and the untested version of the respondent
that she delivered the documents to the appellant in January 2022, the respondent
failed to comply with the order of court. As a result, the rule nisi was confirmed.
There is no appeal against the judgment and order of Gqamana J. Instead, the
appellant brought a contempt application against the respondent for non -compliance
with the order of Gqamana J.

[6] The second application w as brought by the appellant on 30 August 2022. It is a
matter that was interlocutory to the first application. The appellant sought a relief that
the respondent be declared to be in contempt of the interim order that was granted
by Van Zyl DJP in that she failed to deliver the documents to the appellant. The
respondent opposed the application based on the allegation that she had delivered
the documents before the anti -dissipation application was launched on 8 July 2022.
Lowe J dismissed this application and ordered each party to pay her costs.
Aggrieved by such order, on 23 February 2023 the appellant brought an application
for leave to appeal. It was refused. Thereafter, the SCA granted the petition filed by
the appellant against such a refusal, directing t his Court to entertain the appeal.

In this Court:


1 The relief sought to be confirmed is contained in para 1.3 of the order granted by Van Zyl J on 8 July
2022, which is that: ‘The first and/or second respondents to immediately hand over to the applicant or
her attorneys, the applicant' s original identity document, passport and/or any bank cards.’
[7] It was submitted on behalf of both parties that the final determination of the
disputed issue in the anti -dissipation application by Gqamana J raised the issue of
mootness in the relief that is like ly to be made by this Court. The Supreme Court of
Appeal in The President of the Republic of South Africa v DA and Others2, had the
following to say about mootness:

‘The question of mootness of an appeal has featured repeatedly in this and
other c ourts. These cases demonstrate that a court hearing an appeal would
not readily accept an invitation to adjudicate on issues that are of “such a
nature that the decision sought will have no practical effect or result”. The
Constitutional Court in National Coalition for Gay and Lesbian Equality &
Others v Minister of Home Affairs 2000 (2) SA 1 (CC) para 21 footnote 18
remarked:

“A case is moot and therefore not justiciable if it no longer presents an
existing or live controversy which should exist if the C ourt is to avoid
giving advisory opinions on abstract propositions of law. Such was the
case in JT Publishing (Pty) Ltd and Another v Minister of Safety and
Security and Others [1996] ZACC 23; 1997 (3) SA 514 (CC) (1996
(12) BCLR 1599), where Didcott J said the following in para [17]:

“(T)here can hardly be a clearer instance of issues that are wholly
academic, of issues exciting no interest but an historical one, than
those on which our ruling is wanted have now become.”

There are instances where the re have been exceptions to the provision,
initially of s 21A of Act 59 of 1959 and presently s 16(2)(a)(i) of the Superior
Courts Act 10 of 2013. The courts have exercised discretion to hear a matter
even where it was moot. This discretion has been appli ed in a limited number
of cases, where the appeal, though moot, raised a discrete legal point that
required no merits or factual matrix to resolve. In this regard, the

2 [2018] ZASCA 7 9 paras 11-12. Also see: Narius Moloto v The Pan Africanist Congress of Azania
(1176/2019) [2023] ZASCA 140 (27 October 2023) at para 30.
Constitutional Court in Independent Electoral Commission v Langeberg
Municipality [2001 ] ZACC 23; 2001 (3) SA 925 (CC), in paragraph 11 held:

“…A prerequisite for the exercise of the discretion is that any order which this
Court may make will have some practical effect either on the parties or on
others.”’

[8] I accept that the relief about the respondent's imprisonment for failing to comply
with the court order may be regarded as moot. However, the declaratory relief
sought by the appellant in this appeal3 can ne ver be a moot point. The failure by the
members of the public to comply with court orders is a constitutional law matter that
must be vindicated at every opportunity. In Pheko and Others v Ekurhuleni
Metropolitan Municipality (No 2)4 the following was stated:

‘[1] The rule of law, a foundational value of the Constitution, requires that the
dignity and authority of the courts be upheld. This is crucial, as the capacity
of the courts to carry out their functions depends upon it. As the Constitution
commands, ord ers and decisions issued by a court bind all persons to whom
and organs of state to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning of the courts. It follows from this
that disobedience towards court or ders or decisions risks rendering our courts
impotent and judicial authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assurance that they will
be enforced.

[2] Courts have the power to ensure that their decisions or orders are
complied with by all and sundry, including organs of state. In doing so, courts
are not only giving effect to the rights of the successful litigant but also and
more importantly, by acting as guardians of the Constitution, as serting their
authority in the public interest. It is thus unsurprising that courts may, as is
the position in this case, raise the issue of civil contempt of their own accord.’

3 The relief appears in paragraph 2 of the Notice of motion dated 23 August 2022 that was also
dismissed reads: ‘ It is declared that the 1st and 2nd respondents are in breach of the order granted by
the Honourable Deputy Judge President Van Zyl on 8 July 2022…’
4 [2015] ZACC 10 ; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) at paras 1 -2.

[9] The disputes between the parties impact the business interest of FNB and Old
Mutual as the custodians of the appellant’s investments therein, which is subjected
under a continuous threat of unauthorised withdrawal and transfer of the appellant’s
funds by the respondent using the original identity document, passport and bank
cards belonging to the appellant. Consequently, it is in the interest of justice that the
declaratory relief sought in this matter should be adjudicated.

[10] Lowe J dealt with an application for contempt of court order. In S v Mamabolo5,
it was held that contempt of court consists in ‘unlawfully and intentionally violating
the dignity, repute or authority of a judicial body, or interfering in the administration of
justice in a matter pending before it’. Such proceedings are governed by principles
that were establishe d in Fakie NO v CC 11 Systems (Pty) Ltd6, where the following
was said:

‘(a) The civil contempt procedure i s a valuable and important mechanism for
securing compliance with court orders, and survives constitutional scrutiny in
the form of a motion court application adapted to constitutional requirements.

(b) The respondent in such proceedings is not an ‘accuse d person’, but is
entitled to analogous protections as are appropriate to motion proceedings.

(c) In particular, the applicant must prove the requisites of contempt (the order;
service or notice; non -compliance; and wilfulness and mala fides) beyond
reaso nable doubt.

(d) 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 rea sonable doubt as to whether non -compliance was wilful and
mala fide, contempt will have been established beyond reasonable doubt.


5 [2001] ZACC 17 ; 2001 (3) SA 409 (CC) at para 14.
6 2006 (4) SA 326 (SCA) at para 42.
(e) A declarator and other appropriate remedies remain available to a civil
applicant on proof on a balance of probabilities. ’

[11] It is common cause that the applicant did prove the three requisites for the grant
of a contempt order. I agree with Counsel for the appellant that since the onus of
proving absence of wilfulness and mala fide lay on the respondent, a relief ought to
have been granted in favour of the appellant. On the papers as they stood, the
dispute of fact raised by the respondent that she handed over the documents to the
appellant was not genuine if regard is had to her admission that she kept the original
documents in the safe to prevent the respondent from leaving the Link Centre, which
she later on destroyed fully aware that without them the appellant would not be able
to access funds to meet the costs of caregiving services for her stay at Link Centre.
Based on this, the uncreditworthy version proffered by the respondent on affidavit
was, on the ap plication of the Plascon -Evans rule, so implausible, far -fetched, and
untenable that it must have been rejected out of hand7. If that happened, there would
have been no need fo r the hearing of oral evidence.

[12] In this case, a punitive contempt of court order should not have stood in the way
of the court a quo because in its place a coercive contempt of court order could have
been granted. It is stated in the case of Matjhab eng Local Municipality8 that upon
proof of the three requisites for contempt of court, a coercive or punitive contempt
order may be granted by the court in the exercise of its constitutional power in terms

7 In Fakie NO v CC 11 Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at 347B -348B it
was stated appositely as follows:
‘That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine
in this court for more than 80 years. Yet motion proceedings are quicker and cheaper than trial
proceedings, and in the interests of justice courts have been at pains not to permit unvirtuous
respondents to shelter behind patently implausible affidavit versions or bald denials. More than sixty
years ago, this court determined that a judge should not allow a respondent to raise ‘fictitious’
disputes of fact to delay the hearing of the matter or to deny the applicant its order. There had to be
‘a bona fide dispute of fact on a material matter’. This means that an uncreditworthy deni al, or a
palpably implausible version, can be rejected out of hand, without recourse to oral evidence. In
Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984 (3) SA 623 (A)at 635C], this court
extended the ambit of uncreditworthy denials. They n ow encompassed not merely those that fail to
raise a real, genuine or bona fide dispute of fact, but also allegations or denials that are so far -fetched
or clearly untenable that the Court is justified in rejecting them merely on the papers. Practice in th is
regard has become considerably more robust, and rightly so. If it were otherwise, most of the busy
motion courts in the country might cease functioning. But the limits remain, and however robust a
court may be inclined to be, a respondent’s version ca n be rejected in motion proceedings only if it is
‘fictitious’ or so far -fetched and clearly untenable that it can confidently be said, on the papers alone,
that it is demonstrably and clearly unworthy.’
8 2018(1) SA 1 (CC)
of s165 of the Constitution9. In this regard the following was said about the
distinction of the remedies of the contempt of court order at para 67:

‘… on a reading of Fakie, Pheko and Burchell , I am of the view that the
standard of proof must be applied in accordance with the purpose sought to
be achieved, or differently put, the consequences of the various remedies. As
I understand it, the maintenance of a distinction does have a practical
significance: the civil contempt remedies of committal or a fine have material
consequences on an individual’s freedom and security of a person. However,
it is necessary in some instances because disregard of a court order not only
deprives the other party of a benefit of the order but also impairs the effective
administration of justice. There, the criminal standard of proof - beyond a
reasonable doubt - appli es always. A fitting example of this is Fakie . On the
other hand, there are civil contempt remedies - for example, declaratory relief,
mandamus or a structural interdict - that do not have the consequence of
depriving an individual of their right to freedom and security of the person. A
fitting example of this is Burchell . Here, and I stress, the civil standard of proof
- a balance of probabilitie s - applies.’

[13] Consequently, the appeal succeeds in part. The cross -appeal was withdrawn
following the wishes of the respondent.

Costs

[14] Since the parties chose to settle their disputes out of court well before the
hearing of the appeal, it w ill not be just to punish any of the parties with a costs order.
The fact that the respondent is the appellant’s daughter is a factor to be taken into
account. The costs of appeal, including those incurred in the court a quo and
Supreme Court of Appeal, sh all be borne by each party. The payment of costs
attendant to the withdrawal of the cross -appeal shall be paid by the respondent.


9 See: Pheko and Others at paras 1 -2 (above n 4) . The practical effect of the distinction as well as its
application was applied in Snowy Owl Properties 284 (Pty) Ltd v Celliers and Another (1295/2021)
[2023] ZASCA 37 (31 March 2023).
Order

[15] The following order shall issue:

1. The appeal succeeds with each party to pay her costs.

2. The respondent’s cross -appeal is withdrawn with costs.

3. Each party to pay her costs of the application for leave to appeal, including the
costs for the petition against refusal of lea ve to the Supreme Court of Appeal.

4. The order of the court a quo is set aside, and is replaced by the following new
order:

4.1 It is declared that the respondent is in breach of paragraph 1.3 of the order
granted by Van Zyl J on 8 July 2022.

4.2 Each party to pay her costs of the application for contempt of the court order.


____________________
Z M NHLANGULELA
ACTING JUDGE PRESIDENT OF THE HIGH COURT

I concur:

_________
T V NORMAN
JUDGE OF THE HIGH COURT

I concur:

__________
TA NKELE
ACTING JUDGE OF THE HIGH COURT


Appearing for the appellant: Adv. Le Roux
Instructed by: Curthbertson & Palmeira Attorneys Inc
Gqeberha
c/o Nettletons Attorneys
Makhanda.

Appearing for the respondents: Adv. K.M. Morris
Instructed by: Quiton Van Der Berg Attorneys Inc
Gqeberha.
c/o Huxtable Attorneys
Makhanda.