REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 098393/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE
SIGNATURE
In the matter between:
NOMCEBO NOTHULE NKWANYANA First Applicant
EMAZULWINI PRODUCTION AND PROJECTS (PTY) LTD Second Applicant
and
OPEN MIC PRODUCTIONS (PTY) LTD First Respondent
AFRICORI SA (PTY) LTD Second Responden t
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 9 May 2025 .
Summary: A declaratory relief is not there for a mere taking. It is not the duty of
a Court to give litigants legal advice. Where parties conclude a written
agreement and also agree that the agreement be made an order of Court, it is
inappropriate for one party to the agreement to seek an order effectively
freeing it from the agreed obligations by way of a declaratory relief. Where a
legal position is clear, a declaratory relief is unavailable. Where a party seeks
to be relieved from the contractual obligations for legally valid reasons, that
party must approach a Court to seek a cancellation; rectification or variation of
the term of the agreement. In an instance where, as it is the case herein, the
agreement has been made an order of Court, a party may approach a Court for
a rescission or variation of the Court order. The settlement agreement that had
been turned into a Court order is enforceable in law. The belated argument by
the applicants that the agreement lac ks force in law because it is dubbed an
agreement to agree is one that is bad in law.
Generally, Court orders are enforced by way of contempt proceedings. Where
a party seeks a mandamus as a relief, a party must allege and prove a
statutory or public duty to be enforced. It is trite law that a party makes his or
her case in the notice of motion as well as the founding affidavit. Prayer 2 of
the notice of motion effectively calls upon the other party to comply with the
accounting obligations. Regard being had to the founding papers of the
applicants , no case for mandamus has been pleaded. Thus a Court cannot
grant a party a relief that it did not seek. Prayers seeking to enforce a Court
order or agreement must be predicated on the clauses in the agreement or the
terms of a Court order.
Duties of counsel in Court are to assist the Court. When faced with what may
appear to be a difficult case, it remains the duty of counsel to courteously seek
to persuade the Court to the best of his or her ability. It is inappropriate and
probably an unprofessional conduct for counsel to utter statements like , “the
Court has already decided” and “submissions are made for what it is worth”.
Since it is not the duty of this Court to enquire into the professional conduct of
a legal practitioner at this stage, the matter must be referred to the South
African Legal Practice Council for investigations and appropriate action. Held:
(1) The application is dismissed. Held: (2) The applicants are ordered to pay
the costs on a scale of party and party taxable or to be settled on scale B,
which costs include the costs of employing two counsel, the one party paying
absolving the other.
JUDGMENT
MOSHOANA, J
Introduction
[1] From the year 2019 to date, the hit song , Jerusalema , performed by Nomcebo
Zikode (Zikode) and Khaogelo Moagi (better known as “Master KG ”), threw the world
into a frenzy , which saw idiosyncratic and esoteric dance moves being developed the
world over in response to the lyrics and sounds of the song. Little did the dancers
know that , in a no distan t future, a fight shall be fermented over the ownership of the
song that threw them into a frenzy.
[2] The irony that belies the present application is that , the parties before me ,
who were embroiled in a fierce litigation that they managed to resolve by way of a
settlement agreement, which they agreed should be made an order of Court , are
back in Court , where the one party contends that a particular clause of the
agreement already made an order should be declared to be unenforceable in law .1
Before this Court is an application in terms of which the applicants seek a
declaratory and an enforcement order (limited to the accounting obligations) , to be
later dubbed, in the heads of argument submitted on behalf of the applicants , a
mandamus . The prayer 2 in the notice of motion is arduously longer than the
settlement agreement itself and in particular , the clauses it purportedly seek s to
enforce. Therefore , for the purposes of this judgment, the prayers shall be recorded
in a rather truncated form in order to give context to this judgment.
[3] The applicants seek reliefs in the following terms:
“1 Declaring that the first and second applicants do not have any
obligation to conclude the “Joint Venture agreement” as envisaged in
the clause entitled “Future Recordings” in the agreement between the
first applicant, second applicant and first respondent which was made an
order of Court on 15 December 2022 (“the settlement agreement”) .
1 This appears to be a reinvention of the wheel. It is more like a spin of a picker wheel with a hope of a
different random choice.
2 Ordering the first respondent to comply with its accounting
obligations in terms of the settlement agreement by taking the following
steps :”
[4] It must be stated upfront that the steps suggested by the applicants in prayer
2 are overly creative and expansive more than what the settlement agreement
provided for.
[5] The applicants cited Africo ri SA (Pty) Ltd (Africo ri) as a party, yet no relief was
sought against it. The applicant was understandably opposed by Open Mic
Productions (Pty) Ltd only since the elaborative order sought in prayer two was
sought against it. Properly understood, prayer 1 , if granted , affects the rights of
Africo ri.
Pertinent background facts and evidence
[6] The applicants confidently chose motion proceedings over action
proceedings. Impliedly, the applicants did not anticipate a genuine dispute of facts,
and if they did , probably they chose to live with the attendant risk. The dispute
between the parties before me is one that is chequered. For the purposes of the
present application, it shall be obsolete to chronicle that chequered past. It suffices
to acknowledge, as this Court already did at the dawn of this judgment, that
Jerusalema was a hit song. It had a lmost 158 million views on the platform Yo uTube.
[7] In September 2018, the first applicant, Ms Nomcebo Nothule Nkwanyana
(Zikode), an artist , concluded agreements with the first respondent, Open Mic (Pty)
Ltd (Open Mic), a record label company. The relationship between Zikode and Open
Mic has been unsteady for a considerable while. As already indicated, in 2019, the
song Jerusalema was released by Open Mic. There is a dispute as to whether
Zikode and Master KG co -authored the song or whether Master KG alone did that.
This dispute would require no resolution by this Court in the present application.
[8] Around September 2022, a song , Bayethe , was released and Zikode was
nominated for a Grammy Award for it. It was this song that proverbially broke the
camel’s back and sen t the limping relationship between Zikod e and Open Mic into a
state of chagrin. This saw Zikode instituting interdictory proceedings against Open
Mic. The application emerged before the High Court Pretoria on 15 December 2022 ,
before my sister Madam Justice Tolmay . On this day , the parties concluded a
settlement agreement. The terms of the settlement agreement were reduced to
writing and was signed by the parties thereto. It was a tripartite agreement, involving
Open Mic; Zikode and Emazulwini Production and Projects (Emazulwini). The
settlement agreement was headed: “settlement agreement between Nomcebo
Nkwanyana and Open Mic Productions (Pty) Ltd ”. One of the terms of the agreement
was that it shall be made an order of Court on 15 December 2022 for it to have legal
effect.
[9] Indeed, this Court , per Tolmay J , issued an order in the following terms:
1 The ordinary forms and service provided for in the Rules of the High
Court are dispensed with and the application is heard on an urgent basis in
terms of the provisions of Rule 6(12)(a) of the Uniforms Rules of Court.
2 The Settlement Agreement dated, 15 December 2022 attached as
annexure “A” to this Court Order is hereby made an order of court.
[10] It is apposite at this stage to refer to a clause which , following the agreement
being made an order of Court , is now also an order of Court. The clause read s:
“This agreement constitutes a binding agreement and is the sole agreement
between the parties in relation to the subject matter hereof, save as expressly
set out herein . This agreement reflects all the terms as agreed to between the
parties. No variation, amendment or consensual cancellation of this
agreement shall be of any force or effect unless it is reduced to writing
and signed by both parties. ”
[11] It is apparent that after the Court order was achieved, from January 2023 up
to and including 18 August 2023, the parties engaged with a view of implement ing
the terms of the Court order. The p arties give different account s of the events during
this period. Given the view this Court takes at the end, it is unnecessary to
regurgitate each party’s stance over the mentioned period. I pause to mention that
there is serious dispute of facts over certain of the events in an attempt to implement
the terms of the Court order. Regard being had to the order sought in prayer 2, the
facts to be tabulated below are of significance.
[12] On the version of Zikode , after imploring Open Mic to comply with its
accounting obligations in terms of the settlement agreement for months, Open Mic
finally provided inadequate accounting. The highlighted defects in the accounting
obligations may be summarised as follows:
1 Income arising from synchronisation of the sound recordings set out in
a spreadsheet was not included;
2 Income arising from the bookings income, brands or endorsement
deals was not included;
3 The spreadsheet does not include any income from physical sales of
Jerusalema ;
4 Spreadsheet does not include royalty base that was applied, nor does
it indicate what royalty Master KG receives.
[13] The version of Open Mic on the accounting obligation may be summarised as
follows:
1 The applicants claim that Open Mic has made partial and inadequate
performance. This claim is not only malicious , but it is entirely not truthful
because Open Mic has , in fact , performed fully in terms of the agreement.
2 Open Mic provided to the applicants, in respect of what it has received
concerning the song Jerusalema.
3 The Honourable Court can accept that everything else that Open Mic
ought to have provided to the applicants has been provided.
4 A link to access Open Mic’s accounting records w as sent to the
applicant s.
5 The information pertaining to the synchronisation of the sound
recordings was appended to the answering affidavit.
[14] It must be stated that the replying affidavit of Zikode created a further dispute
around the alleged compliance by Open Mic. After the exchange of correspondences
alluded to above, on 28 September 2023, the present application was launched to be
heard on 26 March 2024. The present application could not be heard, and
subsequent interlocutory orders were issued by Mnyovu AJ and Lenyai J ,
respectively. The application came before me as a special motion.
Evaluation
[15] Before this Court engages with the two prayers sought in the present
application, it is apposite to deal with some o f the relevant legal principles
appertaining this application.
Suitability of motion proceedings
[16] Motion proceedings are mainly concerned with resolution of legal question s
with little to no dispute of facts. Motion proceedings are not designed to deal with
dispute of facts. Rule 6(5)(g) of the Uniform Rules provides that when an application
cannot be properly decided based on affidavits , such application may be dismissed.
With regard to compliance with the accounting obligations, the re is clearly a dispute
of fact . On the one hand , Zikode alleges that Open Mic has not complied , and on the
other hand , Open Mic alleges that it has complied. This is a genuine dispute of fact if
this Court is minded to grant prayer 2. On application of the Plascon Evans rule, the
applicants are entitled to a final order if the facts justif y such an order. The order of
compelling sought by Zikode is final in nature and can only be issued in motion
proceeding s once the requirements in Plascon Evans are met. The version of Open
Mic is incapable of being rejected as being far -fetched. On the applicants’ own
version, there was complianc e but the compliance was defective. This claim of
compliance being defective is rejected by Open Mic as being malicious and untrue.
On application of rule 6(5)(g), this Court is unable to resolve the dispute around full
or defective compliance on affidavit. On this basis alone, prayer 2 is bound to fail.
Accordingly, it is the view of this Court that motion proceedings were not suitable for
prayer 2.
The remedy for non -compliance with a Court order
[17] As spelled out above, prayer 2 is all about compliance. All the applicants do is
to dictate , as it were , how compliance should happen. It is common cause that that
which the applicants seek an order of compliance for, is a Court order. It is indeed so
that before being made an order of Court, that which was made an order of Court
was a settlement agreement. Counsel for Open Mic forcefully submitted that
contempt of court order is the only remedy to compel compliance. Counsel for the
applicants, strenuously argued that a mandamus is also a remedy available to
compel compliance. For that proposition, reliance was placed on the judgment of
Eke v Parsons (Eke).2 In particular , he placed reliance on paragraphs 24, 31 -35 of
the judgment. Similar to the facts of this matter, Mr Parsons and Mr Eke were
embroiled in litigation where they were suing each other an amount of about R5
million. At the doorsteps of Court, they settled the litigation by concluding a
settlement agreement, which agreement was made an order of Court. Mr Eke failed
to comply with the terms of the Court order.
[18] What Mr Parsons did was to enrol the summary judgment again as per a
clause in the settlement agreement. Mr Eke raised technical defences which were
rejected by the Court. Mr Eke then appeale d to the Constitutional Court. O n the
issue of the status of the settlement agreement, the Constitutional Court expressed
itself in the following terms:
“[29] Once settlement agreement has been made an order of court, it is an
order like any order. It will be interpreted like all court orders ”.
[19] In paragraph 24, the learned Madlanga J, as he then was, in obiter , this Court
must remark and accept the submission from Open Mic’s counsel that it was stated
in clear terms , the following:
“Depending on the nature of the order , it may for an example – first issue a
mandamus for compliance. Failing compliance, it may then consider committal
for contempt.
[20] When the learned judge made that obiter statement, he referenced what was
said by the erudite Van Zyl ADJP in Ex Parte Le Grange and Another v Le Grange
(Le Grange ).3 The learned ADJP felicitously expressed himself thus:
“[39] While it must be acknowledged that the primary purpose of the parties
seeking, and the court granting a judgment by consent i n s 7(1), is to enable
the parties to the underlying agreement to enforce their rights, there is no
2 2016 (3) SA 37 (CC).
3 2013 (6) SA 28 (ECG) .
reason to restrict the inherent power of the court to enforce its own orders in
this manner. It does not account for the fact that the inherent power of the
court in this regard , like its power in terms of s 7(1) of the Divorce Act, is
discretionary and is exercised in a manner as dictated by the facts of any
particular case. The court is as result not compelled to commit a party for
contempt. It may not only refuse to grant an order for committal, it may choose
to grant such other relief as it may find to be appropriate in the circumstances.
By reason of the quasi -criminal nature, and the emphasis on the penal nature ,
of contempt proceedings, the court may choose a less coercive method to
enforce the order, such as instructing s ome other person nominated by it to
make performance to judgment debtor. It may , for example , order the
registrar of deeds to sign the necessary documents for the transfer of
immovable property, or instruct an officer of the court to seize moveable
property and deliver it to the judgment debtor .4
[40] The ability of the court to grant orders other than committal for
contempt, or the levying of execution leaves it the scope to be innovative in
the manner in which it compels compliance with its own orders. It is therefore
not uncommon for the court to first make an order compelling the judgment
debtor to comply with the terms of the consent judgment on which order the
judgment creditor may then subsequently base proceedings for contempt in
the event of non -compliance. This may be necessary where the obligation
in the settlement agreement was conditional upon some further event. ”
(footnotes omitted)
[21] Counsel for Open Mic was correct when he submitted that options like
mandamus may arise as an innovative means to avoid a coercive order in a
contempt application. A mandamus is a legal remedy available to compel
performance of a public or statutory duty .5 Accordingly, a submission by Zikode’s
counsel that mandamus is available to compel private individuals is rejected.
4 It is worth emphasising that these examples are those of mandamus . Hence the learned Madlanga J
chose not to relist those orders but collectively referred to them by their legal name.
5 See Thusi v Minister of Home Affairs and Another 2011 (2) SA 561 (KZP).
[22] Therefore, the remedy available for non -compliance with court orders is
contempt proceedings. It is indeed so , that a Court seized with an application for
contempt may choose to refuse committal and grant any other innovative order ,
depending on the nature of the order breached.
Did Zikode plead mandamus in any event?
[23] A mandamus is a form of an interdict. Where a party seeks a final relief of
mandamus , such a party must allege and prove, (i) clear right; (ii) an injury actually
comm itted or reasonably apprehended; (iii) the absence of similar protection by any
other ordinary remedy. In motion proceedings, a party set s out the relief it seeks in
the notice of motion , supported by a founding affidavit . In motion proceedings,
affidavits serve two purposes; as pleadings and evidence.
[24] In Director of Hospital Services v Mistry ,6 the Appellate Division stated the law
as follows:
“When, as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will look to determine what
the complaint is … and as has been said in many other cases :
‘… an applicant must stand or fall by his petition and the facts alleged
therein and that , although sometimes it is permissible to supplement
allegations contained in the petition, still the main foundation of the
application is the allegation of facts stated therein, because those are
the facts which the respondent is called upon either to affirm or deny. ’”
[Own emphasis]
[25] When regard is had to the founding affidavit, no case for any form of interdict
has been ple aded. To buttress this point , the obligation in the settlement order with
regard to accounting obligations reads:
“Open Mic Productions will provide full accounting of any artist royalties or
bookings income, sync income and brand endorsement deals concluded for
6 1979 (1) SA 626 (A) at 635H -636A.
the song “Jerusalema” and all other Existing Recordings and other amounts
due in terms of this agreement. ”
[26] This clause , in itself , is not a model of clarity. Both parties are ad idem that the
settlement agreement was poorly drafted and not a model of clarity. It must be so ,
that it will be difficult to emerge with a clear right in a clause like this. The full
accounting , on another interpretation , may mean any of the aspects mentioned in
respect of an artist. Where the word ‘or’ is used, it typically means a choice between
two or more options, where only one of the options is selected. During argument,
counsel for the applicants suggested that, contrary to a submission that some of the
information sought Open Mic does not have, it has been specifically pleaded that
Open Mic is in possession and it is simply refusing to comply with an obligation to
account . Such an allegation would support the requirement of injury committed or
apprehended. The founding affidavit is bereft of such an allegation. The conclusion
this Court makes is that a case for mandamus has not been pleaded at all.
Prayer 1 : declaratory relief
[27] Where the legal position is clear, a declaratory relief is unwarranted. Where a
party holds a view that a contractual provision is not binding on him or her, the
available legal remedy for that party is to seek a cancellation of that contract. If the
contract is already made an order of Court , apply to set aside or vary the order. A
declaratory relief is a discretionary relief and it is not there for the mere taking.
Where the contract in question lays down a procedure for cancellation , that
procedure must be followed, otherwise the cancellation is ineffective .7 In the absence
of laid down procedure, all a party needs to provide is a clear and unequivocal notice
of cancellation. Nienaber JA in Datacolor International (Pty) Ltd v Intamarket
(Datacolor ),8 expressed himself in the following terms:
“It is settled law that the innocent party, having purported to cancel on
inadequate grounds , may afterwards rely on any adequate ground which
existed at, but was discovered after, the time.” (references omitted)
7 See Bekker v Schmidt Bou Ontwikkelings CC and Others [2007] 4 All SA 1231 (C) .
8 2001 (2) SA 284 (SCA) at para 28.
[28] A perplexing feature about this relief is that it is sought almost a year after the
conclusion of the settlement agreement. According to Zikode, the clause set out
below constitutes an agreement to agree and it is unenforceable in law. As it shall be
demonstrated later in this judgment, there is no merit in this assertion. The alleged
offending clause reads:
“Future Recordings
The Parties have agreed that Nomcebo Nkwanyana through her company
Emazulwini Productions will enter into a 50/50 Joint Venture agreement
within 60(sixty) days of the Effective Date of this agreement in relation to the
Future Recordings. The Future Recordings, will be released by the Joint
Venture via Africori. The parties agree that Africori will act as a conduit
facilitating the interaction between the two parties.”
[29] The dictionary meaning of the word ‘agree’ is to concur in opinion or purpose ;
to come into harmony; to give mutual assent; to unite in mental action; to exchange
promises; to make an agreement .9 Regard being had to the meaning of the word,
Zikode has made an agreement to enter into a 50/50 Joint Venture agreement. This
Court cannot declare that Zikode is not bound by the obligation she agreed to. Such
a declaration will be at odds with the constitutionally valid c ommon law principle of
pacta sunt servanda (agreements must be kept). It is apparent that the argument
that the clause amounts to an unenforceable agree ment to agree is a recent legal
machination. The pleaded case reveals a different position. In late November 2022,
in a meeting convened by one Mr Sipho Dlamini, whereat the husband of Zikode was
present , a settlement framework in the following terms, was discussed:
“I (through Emazulwini Production) would enter into a “50/50” joint venture
with Open Mic. The joint venture would fund and co -own my next two
albums . At that stage, the understanding was that the albums would be
released by Universal Music.”10
[30] Further , the pleaded case reveals the following:
9 Black’s Law Dictionary.
10 See Paragraph 35.1 Founding Affidavit (FA) of Zikode.
“The result of this contractual war of attrition, was a draft agreement that
included all the essential framework terms of the settlement (as described
above), but which was by no means perfect .”11
“On 13 April 2023, Feinberg, wrote to the attorneys acting for Open Mic. His
email is attached as “FA5”. Annexed to his email was a draft JV agreement as
envisaged in the settlement agreement…”12
“Our position regarding the draft JV agreement is recorded in paragraph 1 of
the email…”13
[31] The email dated 31 May 2023 , alluded to in paragraph 48.1 of the founding
affidavit of Zikode , reads:
“1. On the JV – the agreement we prepared is in line with the terms of the
settlement. The settlement agreement sets out that Emazulwini and Open
Mic will constitute a “50/50” JV, for the next two albums of Nomcebo, to
be exploited by Africori . This is what is reflected in our draft agreement,
along with the ordinary terms relating to a joint venture. Considering how far
behind the parties are in implementing the settlement agreement , can we
suggest we set up a call this week to get a sense from you what is in issue.
We are hopeful the current agreement can be tailored and executed , rather
than waiting another few months to negotiate and conclude an entirely new
draft.”
[32] If there was no agreement, regard being had to the above evidence, what was
Zikode busy implementing? An agreement to agree is unimplementable . It is
unenforceable because an absolute discretion is conferred on the contracting
parties .14 On any benign reading of the alleged offending clause , an absolute
discretion is not apparent. The reason why Zikode began the process of exchanging
the draft JVs is simply that she knew that in order for her to release her two albums
11 Para 38 of the FA.
12 Para 43 FA.
13 Para 48.1 .
14 See Premier of the Free State Provincial Government and Others v Firechem Free State (Pty) Ltd
2000 (4) SA 413 (SCA) at para 35.
as agreed , a JV ought to be concluded as a vehicle for the release of the two
albums.
[33] The learned Cromwell JA, writing for the majority in Mitsui & Co. (Point Aconi)
Ltd v Jones Power Co Ltd et al (Mitsui ),15 with sufficient sagacity , expressly stated
that:
“[64] To be enforceable, an agreement must contain all essential terms. The
determination of what are essential, however, varies with the nature of the
transaction and the context in which the agreement is made. As Morden JA
said in Canada Square Corp.et al v VS Services Ltd. Et al (1981 )… where
the parties intended to create a binding relationship and were represented by
experienced businessmen, “… a court should not be too astute to hold that
there is not that degree of certainty in any of its essential terms which is the
requirement of a binding contract.”
[66] Jones submits that the MOU is not a contract because its terms require
the parties to reach agreement in the three areas; suitable modifications;
review and revision of the contract to take account of the MOU generally and
the development and signing of the suitable change order. In essence, the
submission is that the operation of the MOU is conditional on agreement
being reached on contract modifications to reflect the MOU and
embodiment of those modifications in a change order.
[67] An agreement is not incomplete simply because it calls for some
further agreement between the parties … The question is whether the
further agreement or documentation is a condition of the bargain, or
whether it is simply an indication of the manner in which the contract
already made will be implemented. This is a matter of the proper
construction of the agreement… ”
[34] This Court is in full agreement with the sentiments expressed with such
perspicacity by the erudite Cromwell JA. On proper construction of the clause, the
parties agreed to record two albums , and the JV was simply the manner and or
vehicle to execute the contract and was not the condition of the bargain. In
15 2000 NSCA 95 (CanLII) .
interpreting any document, b e it legislation or Court order, the entire document must
be read by having regard to the text, context and purpose symbiotically. In the
definitions section of the settlement agreement, the following was recorded by the
parties:
“Future Recordings” shall mean the next two albums only, to be delivered by
Nomcebo, which will be recorded by Nomcebo through her record label
Emazulwini Productions in a joint venture partnership with Open Mic
Productions and released by Africori and shall include any recordings that
Nomcebo elects to feature on up until the date of first release of the second
album delivered by Nomcebo.
[35] When the above clause is taken into account, it is beyond perspicuous that
what the parties w ere looking for is a vehicle they will use to execute their agreement
to record the two albums together. Hence the interchangeably used agreement and
partnership. As confirmed in Mitsui , the interpretative exercise must take account of
the document as a whole as well as the genesis and aim of the transaction of which
it forms part.
[36] In summary, since the legal position is clear, a declaratory relief is
inappropriate. It can only serve as a legal opinion by this Court, something this Court
is not enjoined to do. The clause impugned does not amount to an agreement to
agree. It is a valid , enforceable agreement to jointly deliver two albums using the JV
only as a vehicle. Accordingly, Zikode is bound by the agreed terms. Prayer 1 must
fail.
Prayer 2 : Breach of agreement/Court order
[37] Even if this Court were to consider that Open Mic breached the accounting
obligations, this is part of a case which, with respect, was badly pleaded. When
regard is had to the notice of motion, it is expansive and innovative in nature. In
contractual parlance , if the terms of the contract are not performed at all or
performed late or performed in a wrong manner, the party upon whom the duty of
performance lay is said to have committed a breach of contract.16 In a contract
regime, once a breach occurs, the aggrieved party has an election to make. Either to
accept the repudiation and cancel the agreement and sue for damages or insist on
specific performance. The remedy of specific performance is granted at the
discretion of a Court.
[38] The contractual regime has since vacated in this matter. The settlement
agreement has been made an order of Court and has to be enforced like any other
Court order. An order ad factum praestandum (for the performance of an act) is
enforceable by means of a conte mpt of Court order .17 In Numsa and Others v
Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (Hendor ),18
Madlanga J had the following to say with regard to a reinstatement order , an order
ad factum praes tandum :
“[23] If the employee presents her - or himself for work, but the employer
refuses to accept her or him back, her or his remedy is not contractual . It is
to bring the employer before court for contempt of court . What contempt?
For not complying with the judgment debt embodied in the order to
accept her or him back into employment. The order of reinstatement cannot
be a contractual deb t.”
[39] What Zikode seeks to enforce is compliance with the accounting obligations.
In other words , the Court has ordered Open Mic to provide full accounting of either of
the records specified in the clause. The undue expansion requiring Open Mic to go
under oath on certain information is not what the Court ordered on 15 December
2022. In contempt proceedings, a party is behoved to allege and prove that (i) a valid
court order does exist; (ii) the alleged contemnor was aware of the order; (iii) there
was non -compliance with the order; and (4) the non -compliance was wilful or mala
fide. Had contempt proceedings been instituted, on the facts of this case, Zikode
would have failed to prove non -compliance and disprove lack of wilfulness or mala
fide on the part of Open Mic. Clearly, in whatever form Zikode chose to approach this
16 See Ally and Others NNO v Courtesy Wholesalers (Pty) Ltd and Others 1996 (3) SA 134 (N) at
149H -150A.
17 See Kubeka and Others v Ni -Da Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC) at para 31.
18 (2017) 38 ILJ 1560 (CC) .
Court, be it mandamus , or any other form of mandatory interdict, Zikode fails on a
simple elementary basis of breach or non -compliance.
[40] In summary, Zikode must fail with regard to prayer 2, widely expanded and
casted as it is. As indicated earlier, there is a serious genuine dispute of fact on the
non-compliance issue , and such a dispute is incapable of being resolved on affidavit.
Even when Plascon -Evans is to be brought into aid, a final relief sought in prayer 2 is
not justifiable on the disputed and admitted facts of this case .
Duties of counsel.
[41] In any proceedings before a Court, counsel functions as an officer of a Court.
It is not the duty of a Court to, at every turn, remind counsel of his or her professional
duties. Even where counsel is faced with a tough and challenging case before a
Court, he must remain focused to his or her duties towards a Court. No musical
chairs and vacillation of duties would be countenanced by a Court. Counsel, in as
much as he or she owes a duty towards his or her client, robust and forceful
persuasion should not be conflated with conduct dithering on contempt of Court.
[42] Counsel makes submissions to a Court with an honest intention to (a)
persuade a Court to find in favour of his or her client and (b) assist the Court to arrive
at a just decision. Statements like “judge has made up his or her mind” and
“submissions are made for what it is worth” are in direct contradiction with the duties
of counsel. This Court cannot put it any better than it was put by Ponnan JA in Public
Protector of South Africa v Chairperson of the Section 194(1) Committee and Others
(Public Protector ),19 when he quoted the former Chief Justice of the Supreme Court
of Victoria , who said:
“The duty requires that lawyers act with honesty, candour and competence,
exercise independent judgment in the conduct of the case , and not engage in
conduct that is an abuse of process. Importantly, lawyers must not mislead the
court and must be frank in their responses and disclosures to it. In short,
19 [2024] 4 All SA 693 (SCA) at para 47.
lawyers “ must do what they can to ensure that the law is applied
correctly to the case”.
[43] When a Court engages counsel and probe s the legal correctness of some of
the submissions counsel make s, a Court does not “make up its mind” but a Court
seeks to apply the law correctly to the case. It is only when a Court delivers its
judgment that a Court makes up its mind. Before then, it is unprofessional and
inappropriate for counsel to cast an aspers ion that a judge has made up his or her
mind. This Court is not responsible for the professional behaviour of legal
practitioners. There exists a body bett er qualified to probe into the professional
conduct of legal practitioners . This Court implores the professional body to which Mr
Friedman belong s, to obtain a transcript of the proceedings in order to consider the
conduct of their member. A copy of this judgment must be placed before the
secretary of the South African Legal Practitioners Council (SALPC) for consideration,
investigation and where necessary , proper action. It will be remiss of this Court not to
reveal the submissions of Mr Maphuta, counsel f or Open Mic on this issue. In short ,
he reverberated that his colleague ha d overstepped the mark. Even though Mr
Friedman withdrew the “for what it is worth” statement, it is not the duty of this Court
to censure Mr Friedman at this stage.
[44] On account of all the above reasons, I make the following order :
Order
1. The application is dismissed .
2. The applicants are to jointly but severally pay the costs of this
application, the one paying absolving the other, on a scale as between
party and party to be settled or taxed at scale B, which costs include
the costs of employing two counsel.
3. A copy of this judgment , together with the transcript of the proceedings
of this Court on the day of the hearing , be placed before the secretary
of the SALPC for consideration.
G N MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the applicants: Mr A Friedman .
Instructed by: Rosengarten & Feinberg, JHB.
For the Respondent: Mr M R Maphutha
Instructed by: M Ramalivha Attorneys, Sandton
Date of the hearing: 2 May 2025
Date of judgment : 9 May 2025