THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 746/2023
In the matter between:
JR 209 INVESTMENTS (PTY) LTD FIRST APPELLANT
IDLEWILD FARM (PTY) LTD SECOND APPELLANT
LIBERINI 112 CC THIRD APPELLANT
HY-LINE SOUTH AFRICA (PTY) LTD FOURTH APPELLANT
MALUVHA KWEKERY (PTY) LTD FIFTH APPELLANT
and
HOMELESS PEOPLE HOUSING CO -
OPERATIVE L TD FIRST RESPONDENT
SAMUEL MANDLA SONGO SECOND RESPONDENT
KOLOBE VIRGINIA KGOMO THIRD RESPONDENT
SEL LO SHARON LEHONG FOURTH RESPONDENT
MADUMETSA THOMAS MOJELA FIFTH RESPONDENT
KEDIBONE JOHANNES SIBANYONI SIXTH RESPONDENT
OCCUPIERS OF PORTION 8, 10
AND 38 OF THE FARM WITKOPPIES 393,
EKURHULENI SEVENTH RESPONDENT
2
Neutral citation: JR 209 Investments (Pty) Ltd and Others v Homeless People
Housing Co -Operative L td and Others (746/2023) [2025]
ZASCA 63 (16 May 2025)
Coram: MOCUMIE, MAKGOKA and MOTHLE JJA and DOLAMO and
MASIPA AJJA
Heard: 11 September 2024
Delivered: 16 May 2025
Summary: Contempt of court – requirements restated – whether conduct met
requirements – Co-operatives Act 14 of 2005 – s 72 (1) – whether competent to
rely on a different cause of action after initial provisional order discharged per
agreement.
3
_________________________________________________________________
ORDER
_________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Manamela AJ
sitting as court of first instance):
1 The order of the high court is amended to read as follows :
‘(a) The application for contempt of court is dismissed.
(b) The application for the liquidation of HPH Housing Cooperative Ltd is
dismissed. ’
2 Paragraph 5 of the order of the high court is deleted .
3 Save for the above, the appeal is dismissed with costs .
___________________________________________________________________________________________
JUDGMENT
___________________________________________________________________________________________
Dolamo AJA ( Mocumie, Makgoka and Mothle JJA and Masipa AJA
concurring):
Introduction
[1] This is an appeal against the order of the Gauteng Division of the High
Court, Pretoria (the high court). That court dismissed an application by the
appellants to declare: (a) the first to the sixth respondents to be in contempt of a
court order granted on 19 April 2019; and (b) the first to the seventh respondents
to be in co ntempt of court orders granted on 26 April 2019 and 17 July 2020,
respectively. The high court also dismissed the appellants’ application to place the
first respondent in provisional, alternatively, final liquidation. The appeal is with
the leave of the high court.
The parties
[2] The first to the fifth appellant s companies are the registered owners of
various Portions of the Farm 393 JR Witkoppies, Ekurhuleni, Gauteng. The first
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appellant is also the registered owner of Portion 11,12 and 13 of the farm
Sterkfontein and Portion 10 of the Farm Haartebeesfontein, Gauteng. These
properties are all earmarked for development. The first respondent, Homeless
People Housing Co -operative L td (HPH), is the owner of three immovable
properties which are adjacent to those of the appellants. HPH is a primary housing
co-operative which provides housing to its members. At all material times hereto ,
the second to the sixth respondents were its directors.
[3] In the court below and in this court the appellants cited the seventh
respondents as the unlawful invaders of the first respondent’s properties. This
form of citation was criticized by the Constitutional Court in Occupiers of
Mooiplaats v Golden Thread1. There the Court found this description of human
beings as less than satisfactory as it detracts from the humanity of the occupiers,
is emotive and judgmental, and comes close to criminalising the occupiers. I agree
that such form of citation shall not form part of the papers serving before our court.
The seventh respondents will accordingly be cited as the occupiers of the
properties in question.
Litigation history
[4] In December 2017, the appellants obtained an interim interdict in terms of
which HPH and unknown occupants on HPH properties were restrained from
invading, taking occupation, demarcating stands, delivering any building material,
or building structures on the HPH properties, pending finalisation of Part B.
[5] On 19 April 2019, the appellants again approached the high court on an
urgent basis alleging that HPH and unknown occupants had not complied with the
order granted in December 2017. The appellants sought further interdictory relief
1 Occupiers of Mooiplaats v Golden Threa d Ltd and Others 2012 (2) SA 337 (CC) ; CCT 25/11 [2011] ZACC 35.
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against HPH and unknown occupants as the first and third respondents,
respectively. On the same day, an order was granted in the following terms:
‘1. . .
2. The following order is granted, as an interim order, to operate with immediate effect, pending
the final determination of the relief sought in part [B] of this application:
3.1 The Third Respondents are interdicted and restrained from invading, taking occupation,
demarcating , and/or performing any unlawful building/construction on Portion 10 of the farm
Witkoppies 393, Pretoria, Ekurhuleni; Portion 8 of the farm Witkoppies 393, Pretoria,
Ekurhuleni; Portion 38 of the farm Witkoppies 393, Pretoria, Ekurhuleni (“the invaded
properties) ;
3.2 The Third Respondents are interdicted and restrained from conducting any unlawful
building and/or construction on the invaded properties and particularly dwellings/shacks and/or
from delivering or causing to be delivered any building materials to the invaded properties ;
3.3 The First Respondent is ordered and directed to take any and all steps necessary to enforce
compliance with this order on and in respect of the invaded properties, to desist from any further
unlawful use of the invaded properties or granting consent to do so, to prevent any further
invasion of the invaded properties by the third respondent,, unlawful use, unlawful conduct on
or in respect of, unlawful occupation, unlawful erection of dwellings and particularly shacks at
the invaded properties . . .’
[6] On 26 April 2019 , the appellants obtained an order declaring HHP to be in
contempt of the above order (the contempt order). The high court imposed a fine
of R100 000, which was suspended subject to certain conditions . One of the
condition s was that HPH complie s with the order until such time as townships
would have been established on HPH properties or HPH ha d disposed of them.
The contempt order instructed the sheriff to demolish each structure erected on the
HPH properties after the order of 19 April 2019. The sheriff executed the order
from 27 April 2019 to 17 May 2019. On 27 May 2019 , the respondents launched
an urgent application in the high court for a declarator that the contempt order did
not provide for the eviction of the occupants of the HPH properties or the
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demolition of structures thereon, and for an order that the sheriff reconstruct the
demolished structures. Fourie J dismissed that application.
[7] On 7 May 2020, the appellants brought an urgent application for the
liquidation of HPH. The high court granted a provisional order placing HPH in the
hands of the Registrar of Co -operatives, returnable on 15 July 2020. An interim
liquidator was appointed . On the return date the court discharged the provisional
liquidation order by agreement, on condition that HPH pa ys the related
administration costs totalling R190 644.47 within 48 hours of the granting of the
order , and to ensure that:
‘4.1 [U]ntil such time as legally entitled to do so, no more than 52 persons shall at any time be
present, and no further dwellings, shacks, or similar structures, other than currently on the
properties owned and controlled by the respondent as on the date of this order, shall be
constructed and/or erected thereon ;
4.2 [N]o person shall illegally and unlawfully occupy the properties owned and controlled by
the respondent ;
4.3 [N]o structures of any nature shall illegally and unlawfully be erected on the properties
owned and controlled by the respondent; and
4.4 [T]here shall be strict compliance with any applicable legislation relating to the properties
owned and controlled by the respondent, [especially] with regard to the occupation thereof .’
[8] On 2 September 2020, the respondents paid the administration costs of the
liquidation as ordered above. What remained outstanding were the taxed costs
referred to in paragraph 5 of the order which, after taxation, were paid in October
2021. Subsequently, the appellants made fresh allegations of further breaches of
previous orders. And, as a precursor to another urgent application, they detailed
steps they took to prevent further contraventions, including seeking an
undertaking from the respon dents’ atto rneys that the latter would desist from
further illegal activities.
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[9] When such an undertaking was not forthcoming , the appellants arranged
with the sheriff of the court to again serve the previous orders on 18 September
2020. The sheriff was denied access to the premises . The appellants then arranged
a crane to hoist building materials out of the HPH properties and removed them
for storage at alternative premises identified for this purpose by the respondents.
In addition, using a drone, the appellants took photographs of the HPH properties
which they presented as proof of the alleged ongoing violation of the previous
court orders.
[10] In the latest of the series of urgent application s, brought after the events of
18 September 2020, the appellants sought an order declaring HPH and its directors
who, save for its chairperson, were cited in person for the first time, to be in
contempt of court and for the liquidation of HPH. In the contemp t of court relief,
the appellants sought an order uplifting the suspended fine imposed on HPH and
for the imposition of an additional fine of R500 000; declaring the first to the
seventh respondents to be in contempt of court, coupled with an order for fir st
respondent’s committal to prison for six months; and declaring the other directors
(third to sixth respondents) to be in contempt of court, and imposing a fine of R500
000 on each of them.
[11] In seeking the liquidation relief, the appellants asserted their standing to
bring the application as contingent creditors for R414 012.99, being in respect of
a costs order granted on 17 July 2020, though those costs were yet to be taxed.
They also submitted that they were interested parties as contemplated in s 72(1)
of the Co -operatives Act 14 of 2005 (the Co-operatives Act ) by virtue of being
owners of properties adjacent to and bordering HPH properties. They further
allege d to qualify as such by virtue of being interested parties in previous court
orders. They submitted that, in terms of s 72(1) (a) and (b) of the Co -operatives
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Act, they have standing to apply for HPH’s liquidation since it was unable to pay
its debts and with no reasonable probability that it would be able to do so.
[12] In the alternative, the appellants contended that it was just and equitable,
pursuant to s 72(1) (c) of the Co -operatives Act, for HPH to be wound up as its
entire substratum and existence was premised on an illegality. The illegality,
according to the appellants, was to be found in the alleged unlawful and fraudulent
sale of portions of undivided agricultural land to indigent individuals; the
persistent and unlawful conduct o f the respondents in undermining court orders;
the perceived unconscionable abuse of the separate juristic personality of HPH
which manifested in the manner in which the second to th e sixth respondents
conducted its affairs in conflict with s 3 of the Subdivision of Agricultural Land
Act 70 of 1970 (SALA) fully aware that the intention to provide residential
accommodation on HPH properties is illegal and unlawful, but continuing with
reckless disregard for the law; and that the respondents thereby exploited innocent
members of the community. The res pondents opposed the application.
[13] The respondents denied defrauding members of HPH, any person or
creditor, promoting any fraudulent scheme, or engaging in any fraudulent sale of
portions of the HPH properties. They further denied any abuse of the separate
juristic personality of HPH. Th e respondents also brought an application to strike
out certain paragraphs of the appellants’ founding affidavit on the basis that these
contained vexatious and scurrilous allegations, including baseless defamatory
accusations, emotive language, similar fact evidence and assertions aimed at
harassing and annoying the respondents.
[14] The matter was eventually heard by the high court which subsequently
delivered its judgment on 24 March 2022, in which it dismissed the relief for
contempt of court with costs on an attorney and client scale. In dismissing the
9
contempt of court application, the high court held that, to some extent, there is an
overlap, repetition, and ambiguity between the court orders which defeats the
purpose of court orders having to be in clear and readily ascertainable terms. Per
incuriam , the high court also made an order setting aside an order for the
liquidation of HPH. As mentioned, the provisional order for the liquidation of
HPH was discharged on 17 July 2020, and as such there was no provisional order
to discharge.
In this Court
[15] The appeal before us revolves around two narrow issues. First, whether the
appellants have proved that the respondents have breached the court orders
previously granted in the ongoing dispute between the parties. Second, whether
HPH should be placed in provisional, alternatively, final liquidatio n in terms of s
72(1) (a), (b), or (c) of the Co -operatives Act.
[16] The appellants asserted that they have shown, in fact, that further informal
dwellings were erected on HPH properties after the previous orders were granted.
They argued that the undertaking by the respondents’ attorney that steps needed
to be taken as far as possible to ensure that no court order was contravened,
evinced that the orders had hitherto been disregarded. For their part, the
respondents denied any breach of the previou s orders and submitted that none of
these orders granted relief personally against the second to the sixth respondents,
and that , absent any order against the respondents personally and proof that they
personally breached them, no contempt of court relief against any of them was
competent.
Contempt of court
[17] The requirements of contempt of court are well established in our law. An
applicant for a contempt of court must prove: (a) the existence of the order; (b) the
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order must be served on or brought to the notice of the alleged contemnor; (c)
there must be non -compliance with the order; and (d) once the applicant has
proved the order, service or notice, and non -compliance, respondent bears an
evidential burden in rel ation to wilfulness and mala fide .2 The non -compliance
must be wilful and mala fide.3
[18] It is not in dispute that the various orders were granted against HPH and
were brought to its attention. The issue is whether there was a wilful and mala fide
disregard of the orders by the respondents. It must be borne in mind 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.4
[19] The deponent to the appellants’ founding affidavit relied on what was
allegedly conveyed to him by an owner of an adjacent property, that HPH had
again caused or allowed heaps of building material to be delivered to its properties.
The said owner did not file any confirmatory affidavit to support this averment.
The case was further premised on the supposition that three more structures were
constructed from this additional material. This was purported to be supported by
the photographs that were taken on 18 September 2020. The se allegations were
denied by the respondents who specifically pleaded that the material and the
structures which were on the HPH properties on 3 September 2020 were the same
building material and structures that were on site at the time the 17 May 2020
order was granted by agreement.
2 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) ( Fakie ) para 42 .3.
3 See Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10; 2015(5) SA 600 (CC);
2015 (6) BCLR 711 (CC) para 32.
4 Fakie para 10.
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[20] The appellants did not obtain any confirmatory affidavit from the owner of
the adjacent property to deal with the respondents’ denials, which were not merely
bald denials. Instead, the appellants argued that the respondents did not explain
where these heap s of building material came from nor how the three structures
were erected. The appellants failed to seize the opportunity , in reply , to provide
evidence of the alleged contraventions of the court orders. Such new evidence
would have been in response to the defence raised by the respondents and was not
such that it had to have been included in the founding affidavit to set out a cause
of action.5
[21] The appellants also relied on the photographs taken on 18 September 2020,
purporting to provide evidence of contraventions of the orders by comparing them
with photographs previously taken in March and April 2020. They then submitted
that, when compared with the earlier photographs, the latter photographs provided
conclusive proof of an increase in the building material deposited on the premises
and the erection of three additional structures. The analysis of these photographs
does not bear scrutiny.
[22] The first set of photographs, said to be aerial photographs of Portions 8 and
38 of the Farm Witkoppies (HPH’s immovable properties), taken from 23 March
to 28 April 2020 depict a cluster of large buildings with red, grey, and white roofs,
and tiny, whit e dots, scattered around and which are said to be the shacks erected
on the HPH properties. The next set of photographs, said to be aerial photographs
taken on 3 September 2020, again depict the tiny white dots and one big building
with a greyish roof.
5 It was held , in Drift Supersand (Pty) Limited v Mogale City Local Municipality and Another [2017] ZASCA 118;
[2017] 4 All SA 624 (SCA) para 10, that ‘there is today a tendency to permit greater flexibility than previously
have been the case to admit further evidence in reply ’.
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[23] Other photographs in this b undle depict a range of buildings with white
roofs, like those appearing in the photographs taken from March to April 2020.
One photograph, from the latter set, which is the only clear photograph in the
bundle, depicts three piles of corrugated iron sheets with wooden planks attached
thereto. The appellants drew from these images the inference that ‘a substantial
amount of new building material had been delivered to the HPH properties
throughout April 2020 to September 2020’ and that three new structures had bee n
erected.
[24] It should be borne in mind that the order of 19 April 2020 specifically
authorised the sheriff to demolish only unoccupied structures. Once that has been
done, the material therefrom c ould be stored neatly on the HPH properties . There
is no evidence of the number of structures that remained after the order was
executed , and the amount of building material that was on the properties . These
photographs therefore do not provide proof that , after the orders were executed ,
additional building material was brought on to the HPH properties . They also do
not provide proof that additional structures were constructed from this material .
[25] The appellants also argued that the timing of the undertaking by the
respondents’ attorneys , that steps would be taken to ensure that no court order
would be breached , which came after service of the application on the respondents,
was proof that HPH and its directors had been disregarding, disobeying, and
breaching all the court orders. This undertaking by the respondents’ attorneys was
without admission of any liability and accordingly cannot be construed as an
admission of any of the alleged contraventio ns. The appellants, consequently, ha d
not proven their case.
Liquidation of HPH
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[26] Section 72(1) of the Co -operatives Act provides that a court or the tribunal
may, on application by an interested person, order that a co -operative be wound
up, if (a) the co -operative is unable to pay its debts; (b) there is no reasonable
probability that it will be able to pay its debts or become a viable co -operative;
and (c) it appears just and equitable to do so. To qualify as ‘interested persons’
and therefore have standing to bring an application for HPH’s liquidation , the
appellants had to meet the requirements of either s 72(1) (a), (b), or (c) of the Co -
operatives Act .
[27] There was much debate about whether the appellants have standing in terms
of s 72(1) to apply for the liquidation of HPH. Given the view I take of the matter,
it is not necessary to decide this issue. For present purposes, I assume that the
appellants have the necessary standing. However, the appeal on this issue should
fail because the lis between the parties in this regard has been settled. As
mentioned, the appellants sought and obtained a provisional order for the
liquidation of HPH in May 2020. That pr ovisional order was subsequently
discharged pursuant to an agreement between the parties, subject to certain
conditions. Those conditions were met. It is therefore not open to the appellants
to now seek to re -litigate the issue.
[28] Our law requires a party with a single cause of action to claim in one and
the same action whatever remedies the law accords him upon such cause.6 The
alleged illegal activities of HPH in relation to its affairs were known to the
appellants when the initial application to liquidate HPH was made. They could
have relied on this, in addition to HPH’s indebtedness. Instead, they elected not to
do so, but to rely only on HPH’s indebtedness as its cause of action.
6 Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A -E.
14
[29] Now that the initial basis for the liquidation of HPH no longer exists
because the matter was settled, the appellants now seek to rely on a different cause
of action , which was available to them when the initial application was made. This,
the appellants are not permitted to do. As explained in Eke v Parsons ,7 the result
of a settlement agreement made an order of court is that a party is precluded from
relying on a cause of action or defence that could have been advanced or raised
but for the settlement order.
[30] For all these reasons the high court cannot be faulted for the conclusion it
reached. The appeal must fail. As mentioned, the high court purport ed to set aside
a liquidation order in the circumstances where the appellants were not successful
in the application and th is order existed. Th is is rectified in the order that follows.
Costs
[31] The high court granted a punitive costs order against the appellants on the
basis that the appellants had burdened the court with unnecessary applications .
The high court was of the view that the previous court orders could have been
prosecuted to finality to confirm or dismiss the interim relief that was in place.
Other factors considered by the court for a punitive costs order were that : (a) it
viewed negatively, the appellants’ conduct in bringing a further application for the
sequestration of HPH after the init ial provisional order was discharged by
agreement; and (b) the manner in which the appellants pleaded their case, making
historical reference to past applications , compelling the respondents and the court
to trawl through lengthy affidavits and annexures.
[32] It follows that , the high court properly exercised its discretion , which this
Court is, ordinarily, not at large to interfere with. As an appellate court, its power
7 Eke v Parsons [2015] ZACC 30 ; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 CC para 31.
15
to interfere is limited to instances where a lower court has acted capriciously or
upon a wrong principle or has not exercised its discretion judiciously.8 The
appellants could not point to any of the above in how the high court exercised its
discretion . There is therefore no basis to interfere with the high court’s costs order.
[33] In the result, the following order is made:
1 The order of the high court is amended to read as follows :
‘(a) The application for contempt of court is dismissed.
(b) The application for the liquidation of HPH Housing Co -operative Ltd is
dismissed. ’
2 Paragraph 5 of the order of the high court is deleted .
3 Save for the above, the appeal is dismissed with costs.
________________________
M J DOLAMO
ACTING JUDGE OF APPEAL
8 See, for example, Hotz and Others v University of Cape Town [2017] ZACC 10; 2017 (7) BCLR 815 (CC); 2018
(1) SA 369 CC paras 25 and 28.
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Appearances
For the appellant s: P Lourens
Instructed by: Strydom Rabie Inc, Pretoria
Symington De Kok Attorneys, Bloemfontein
For the respondents: C Van der Merwe
Instructed by: Minnie & Du Preez Inc, Kempton Park
Phatshoane Henney Attorneys , Bloemfontein.