IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 14435/2024
In the matter between:
HELMA VANZYL
and
NEOMULLER
Heard:
Order Granted:
Reasons Requested:
Reasons Delivered:
PARKERAJ
Introduction 29 January 2025
30 January 2025
6 February 2025
28 March 2025
JUDGMENT-REASONS Applicant
Respondent
[1] On 30 January 2025, an order was granted in terms of which the application
was dismissed together with costs on a party and party scale including counsel's fees
as taxed or agreed on scale A.
[2] On 6 February 2025 a request for written reasons was delivered in terms of
Rule 49(1)(c), sought by the applicant. What follows are the written reasons.
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[3] The history of the application shows it was postponed by agreement between
the parties on 25 September 2024 to 29 January 2025 on the semi urgent roll, wherein
applicant was seeking an order to have respondent declared to be in contempt of court
for his willful failure to abide by the terms of an order granted on 21 February 2024 in
the George Regional Court by the Honourable Magistrate Ramalebana. The prayers
also sought that a sanction be imposed on the respondent for his committal to
imprisonment for a period of three months for noncompliance of the order. In the
alternative an order was to compel the respondent to comply with the order.
[4] Applicant contended that the respondent opposed the application as a strategy
to delay and obfuscate the claim.
[5] The applicant set out in the detail the romantic relationship between her and
respondent which led them to conclude an agreement on the 12 May 2016 that the
respondent would purchase an immovable property ('the property") in Riversdale for
an amount of R1 080 000.00, which comprised the purchase price and the transfer
costs. In accordance with their agreement, the property was then accordingly
registered in respondent's name.
[6] According to applicant she made a cash contribution towards the purchase
price in the amount of R250 000.00 equating to a figure constituting 23.5% of the total
costs. Respondent would finance the remaining balance of the purchase price in the
amount of R830 000.00.
[7] It was further agreed that the respondent would be responsible for the bond
payments monthly. According to the applicant respondent undertook that in the event
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of a change in financial circumstances, to register applicant's 23.5% of the immovable
property in her name.
[8] The agreement also made provision for termination. In the event that the
relationship would terminate it was agreed that the parties would obtain 3 valuations
for the property which would aid to determine the reasonable market value, on the
basis that the average value of the valuations would be used to determine a fair value
for property.
{9] Further pertinent terms were agreed providing the first option to purchase out
each other, failing which the immovable property would be sold at the best price on
the open market. In the event of a termination, the parties would vacate the property.
The rental income would be divided between them in accordance with their property
share and the proceeds from the sale of the immovable property would be divided
between them in accordance with their respective ownership percentages. According
to applicant, respondent would be responsible for the cancellation of the existing bond.
[1 O] The property was duly registered in the name of the respondent however it
never reached the stage for applicant's share of 23.5% to be registered against the
Title Deed of the property in her favour.
[11] When the romantic relationship terminated, applicant vacated the immovable
property. It was then further agreed that the respondent would pay her an amount of
R20 000 in order for her to relocate elsewhere.
[12] On the applicant's construction and interpretation of the order, she is entitled to
an amount of R 473 916.67 and his failure to pay her what is due to her gave rise to
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her to hold the respondent for contempt of the court order which in her view he is in
willful default of.
Respondent 's version
[13) It is the respondent 's submission that the applicant was only entitled to receive
23.5% of the proceeds of the sale of the property after deductions which according to
his calculations amounted to a sum of R 124 983.34.
[ 14] This method of determining the value due to applicant was met with disapproval
by the applicant who argued that the bond payment would be the respondent's sole
responsibility, and that applicant could not reasonably be held liable for rates and taxes
incurred when she was not residing at the property any longer. Furthermore , that
contempt proceedings should not be preferred against him in the face of
communication exchanges to determine what is due to either party. In respondent 's
view he has complied with the order of the court a quo and was not in disobedience
thereof.
George Regional Court
[ 15] It is necessary to examine the litigation history. Applicant proceeded to institute
an action against the respondent in the George Regional Court for various claims
including claim 1 for a payment of R 234 855.00 representing the 23.5% claim and a
claim number 3 for an amount of R 55 000.00. The matter in the court a quo pivoted
on the interpretation of the agreement signed between the parties in 2016. This action
was defended by the respondent who pleaded that the parties had concluded a
partnership which had to be dissolved in terms of the action communi dividundo. The
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defendant did not completely deny liability however pleaded that the plaintiff is entitled
to 23.5% share in the partnership which was recorded in the reasons for the judgement
by the learned Magistrate. Essentially the same issues that served before the learned
Magistrate served before this court, for determination then being whether:
15.1 the plaintiff is entitled to an amount of R 234 855.00 or 23.5%.
15.2 the plaintiff is entitled to 23.5% from the proceeds of the sale of
the property.
[ 16] The judgment reflected that the magistrate considered the law and the decision
in the Natal Joint Municipal Pension Fund v Endumeni Municipality 1. In the result the
court ordered as follows:
"29. Plaintiff is entitled to 23, 5%. And alternative to claim is granted from clause A to
E excluding F&G ... the defendant is ordered to obtain 3 valuations of the property and
buy out the plaintiff shares. "2
[17] Furthermore the order provided that in the event that defendant is unable to buy
the property, it be put on sale. Importantly paragraph (e) read as follows.
"Pay to the plaintiff proceeds of the sale of the properly equivalent to her 23. 5%
share in entitlement ."
Therefore, Judgment was granted that plaintiff is entitled to 23.5%. Since the parties
have not reached an agreement, the applicant instituted an action in the amount of
R234 855.00 and in the alternative interdictory relief to compel the respondent to
1 2012 (4) SA 593 (SCA)
2 The Magistrate used capital letters for prayers (e), (f) and (g).
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undertake the process of determining a market related price of the immovable
property, to sell it and to pay the applicant her share of the proceeds.
[18] The learned Magistrate embarked on an interpretive exercise and interpreted
the 2016 agreement to mean that the applicant was entitled to 23.5% and an
alternative claim from the "profit from the sale of the house. '13 The applicable portions
of the judgment inter alia, were that applicant was directed to obtain three valuations
of the property and if a buy-out did not prevail then to place the property for sale on
the market.
The issues in dispute
[19] The main issues in dispute related to whether;
19.1 applicant is to be paid a sum of 23.5% of the value of the immovable
property.
19.2 the applicant is to be paid 23.5 % of the proceeds of the immovable
property.
19.3 the respondent is in contempt of the court order for his willful default.
Respondent's version
[20] It is the respondent's submission that the applicant was only entitled to receive
23.5% of the proceeds of the sale of the property after deductions which according to
his calculations amounted to a sum of R 124 983.34 in keeping with prayer (e).4
3 Underlined-own emphasis. See reasons for judgment para 27 dated 21 February 2024.
4 Inserted here for emphasis :• "Pay to the plaintiff proceeds of the sale of the property."
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[21] This method of determining the value due to applicant was met with disapproval
by her who contended that the the bond payment would be the respondent's sole
responsibility, and that applicant could not reasonably be held liable for rates and taxes
incurred when she was not residing at the property any longer.
[22] On the applicant's construction and interpretation of the order, she is entitled to
an amount of R 473 916.67.
Evaluation
[23] It is common cause that the parties lived together for the period of June 2016
to 15 August 2020. The applicant is unhappy with the method of calculating the
amount which is due to her and is thus seeking a contempt of court order, which in her
view, the Respondent is in willful default of.
[24] The law on (civil) contempt of court is well established . Contempt of court is
defined as "the deliberate, intentional (willful), disobedience of an order granted by a
court of competent jurisdiction".5 Contempt proceedings serve three important
purposes: namely, protecting the rights of everyone to fair trials, maintaining public
confidence in the judicial arm of government, and upholding the integrity of court
orders.6
5 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) 2615 {5) SA 600 (CC) (Pheko II) at 617A­
B; Minister of Home Affairs v Scalabrini Centre 2013 (6) SA 421 (SCA) at 443H-I; and NW Civil Contractors
CC v Anton Ramaano Inc 2020 (3) SA 241 (SCA) at para 6 (3)
6 Milton, South African Criminal Law and Procedure (Vo] II: Common Law Crimes) (3 ed) Cape Town, Juta
and Co: 1996 at 165
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[25) For an act to constitute contempt, an intention to defeat the course of justice
must be established.7
[26] It is trite that our law permits an aggrieved litigant to approach a court for an
order of contempt pursuant to an earlier court order being defied by the contemnor.
[27] The applicant has to prove the existence of the order, service or notice non­
compliance, and willfulness and mala fides beyond reasonable doubt. Once the
applicant has proved the order, service or notice and non-compliance, the respondent
bears an evidential burden in relation to willfulness and mala fides.8 Fakie v CCII
Systems is the leading authority when a court considers a civil contempt of court
application.9 It additionally summarised the rationale and requirements for civil
contempt as being:
" ( a) The civil contempt procedure is a valuable and imporlant 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 accused person but is entitled to
analogous protections as are appropriate to motion proceedings."
[28] The Constitution of the Republic of South Africa provides an overarching
protection to the Rule of Law and the decisions made by judicial officers, which as a
7 Coconut Express CC v South African Revenue Service (Customs and Excise) and others [2016] 2 AIJ SA 749
(KZD)
8 Eis v Weideman and Others 2011 (2)126 (SCA) para 66-67
9 2006 (4) SA 326 (SCA) para 42
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constitutional imperative flowing from section 1 and section 165, vouchsafes judicial
authority.10 The Constitutional Court recognises that disobedience towards court
orders or decisions risks rendering our courts sterile, and judicial authority a mere
mockery. The teeth in effect of court orders are substantially determined by the
assurance that they will be enforced, 11 thereby ensuring their dignity and
effectiveness.
(29) In Pheko and others v Ekurhuleni City, 12 the Constitutional Court explained
that:
"Contempt of court is understood as the commission of any act or statement that
displays disrespect for the authority of the court or its officers acting in an official
capacity. This includes acts of contumacy in both senses: willful disobedience and
resistance to lawful court orders. This case deals with the latter, a failure or ref us al to
comply with an order of court. Willful disobedience of an order made in civil
proceedings is both contemptuous and a criminal offence. The object of contempt
proceedings is to impose a penalty that will vindicate the court's honour, consequent
upon the disregard of its previous order, as well as to compel performance in
accordance with the previous order. "
[30] Accordingly, if on a conspectus of all the evidence there is a reasonable
possibility that non-compliance with the court order in issue was not willful and ma/a
10 Pheko supra para 26
11 Matjhabeng Municipality v Eskom 2018 (1) SA (1) at paragraph 46-67; Pheko and others v Ekurhuleni City
('Pheko') 2015 (5) SA 600 (CC); 2015 (6) BCLR 771 (CC); [2015] ZACC 10 at paragraphs 1-2 and 25 to 37
with reference inter alia to Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
12 2015 JOL 33198 (CC) at para 28
10
fide, contempt is not established .13 The willfulness (intent) consideration is further
informed by the requirement that there must be an intention to defeat the course of
justice for an act to constitute civil contempt, 14 or otherwise cast, a court must find the
"litigant to be possessed of malice on balance".15
[31] However, where most of a court order has been complied with and the non­
compliance is in respect of some minor matter only, the Court will take the substantial
compliance into account and will not commit for a minor non-compliance; i.e. the
applicant has to show a material non-compliance with the court order. 16 It is that the
relevant prevailing circumstances will determine whether a compliance matter is to be
regarded as "minor'' or otherwise.
(32] In these proceedings, it is common cause that (i) a court order exists; (ii) the
respondent has knowledge of the court order; and (iii) it is a requirement which shows
there has been strict compliance with the express terms of the order, albeit not to the
satisfaction of the applicant.
13 See Fakie NO v CCII Systems (Pty) Ltd supra at para 14 and Matjhabeng Local Municipality supra at paras
67 and 85-88
14 Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA)
para 51
u Pheko supra para 37
16 Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C)
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[33] Accordingly, the applicant is required to demonstrate that the respondent's non­
compliance is wilful and/or ma/a fide, beyond a reasonable doubt, to succeed with the
committal of the respondent or for the court to consider alternative sanctions.
(34] It is clear that the divergent views hinge on the interpretation of the order. It
would have been far better if the applicant had brought a declaratory regarding the
interpretation of the order instead of her contempt application to compel the
respondent to comply with the order for his disobedience thereof. However, in my view,
the order of the court a quo is clear: "Pay to the plaintiff proceeds of the sale of the
property". The definition of "proceeds" means the proceeds in this case of the
immovable property. What is unclear is whether the proceeds are gross or net. This is
where the problem really lies.
[35) The applicant has failed to show that the respondent has not complied with or
is in willful disobedience of the order. The conduct shows substantial compliance,
which can be gleaned from the exchanges between them and their legal
representatives. I agree with the respondent's position that the contempt application
is not competent as the applicant is using the contempt proceedings to request the
court to reinterpret the meaning of the court a quo's judgment that ordered that the
applicant should be paid the "profit or proceeds of the sale of the property." To amplify,
the exchanges between the respective legal representatives regarding the
computation of the proceeds are such that they attempted to settle the capital owing.
In the result, I have found that the respondent was not in willful default.
[36] The applicant followed the incorrect procedure by invoking contempt of court
proceedings in an attempt to strong-arm the respondent to concede to her demands.
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[37] There are alternative remedies available to the applicant. The respondent has
recourse to return to the court a quo to determine what profit means, whether
deductions or amounts have to be included, if any, to determine the proceeds of the
property of the sale, alternatively to appeal the order.
[38) Accordingly, there was no need to grant the applicant the alternative prayer
calling on the respondent to comply with the order, because in my view, the attempts
to settle the proceeds, albeit on an interpretation not favoured by the applicant, show
that he has taken steps to facilitate the resolution of the matter.
[391 In the result, it is the interpretation of the court a quo's order which has caused
this dilemma, not that any blame is apportioned at the feet of the magistrate. Often,
parties and legal representatives in their eagerness to resolve a matter, agree to an
order without having due regard to its practical consequences and without due regard
to the lack of critical quantification in the event that the immovable property would be
sold. Had this been thoroughly thought through, particularly how the applicant's share
namely the 23.5%, would be applied in the event of a sale, much of this analysis would
have not been necessary. The opposite happens when a clear analysis is not done.
(40] In my considered view, I was not convinced that the applicant had reasons to
hold the respondent in contempt of court. The negotiations between the parties
showed that the respondent was not in willful default of the order.
[41] As for costs, the costs followed the result.
Accordingly, the application was dismissed with costs.
I
PARKERA J
Acting Judge of the High Court
Appearances
Counsel for the Applicant: Adv Luke Zazeraj
Instructed by: Marais MOiier Hendricks Attorneys
Counsel for the Respondent: Adv Adrian Montzinger
Instructed by: Hofmeyr & Son Attorneys
This judgment was handed down electronically by circulation to the parties'
representatives by email. 13