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Summary: Application to compel compliance with order of Court and enforce
civil contempt remedies. Civil contempt requirements not established on
evidence. Applicants entitled to a compliance order and leave to suppleme nt
should non -compliance persist.
ORDER
a. Bar is uplifted in respect of the delivery of the respondent ’s
answering affidavit and to the extent necessary, condonation is
granted for the late filing of the answering affidavit and the replying
affidavit.
b. The respondent, Mr Mandla John Ngwenya, is directed no later than
60 (sixty) calendar days from the date of this order, to comply with
the order of this Court granted on 18 March 2016 under case number
LCC114/2008.
c. The applicants are granted leave to ap proach this Court on the same
papers for further relief should it become necessary.
d. There is no order for costs.
JUDGMENT
COWEN DJP
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Introduction
[1] The applicants are two Trusts, the Deacon Trust and the Hartebeesfontein
Trust. The Hartebeesfontein Trust is the owner of Portion 3 of the Farm
Hartebeesfontein 134, V olksrust, Mpumalanga Province (Portion 3). The
Deacon Trust owns an adjacent property, Portion 2 of the Farm
Hartebeesfontein 134 (Portion 2) . Portion 2 and 3 are farmed as a unit . The
respondent is Mr Mandla John Ngwenya . Mr Ngwenya resides on Portion 3
with his family. He keeps goa ts.
[2] In this application, the applicants seek to enforce an order of this Court
granted by Mpshe AJ on 18 March 2016 pursuant to which , inter alia , Mr
Ngwenya undertook to vacate Portion 3 (the Mpshe order) .
[3] The dispute arises originally from a restitution claim lodged in terms of
the Restitution of Land Rights Act 22 of 1994 by a Mr Mehlo Nkabinde on
behalf of the Kwa -Munyamane Community in respect of Portion 2 and Portion
3. According to the applicants, the claim was settled in March 201 6 on the
basis inter alia that the applicants would make land available for the State to
acquire for the benefit of the claimants, including Mr Ngwenya. Mr Ngwenya
is a member of the claimant community . The claimants, including the
respondent w ere to vacate Portion 3 and move to the settlement land. The
applicants aver that the respondent was a member of the claimant community,
authorised Mr Nka binde to act on his behalf in the land claim and that the
claimants were legally represented when the matter was settled and the
agreement made an order of Court.
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[4] The applicants seek to enforce an undertaking, recorded in paragraph 2
of the Mpshe order, that the respondent and all persons occupying Portion 3
through him, would vacate their homesteads within 180 days from the
registration of transfer of a subdivision in the name of the State and remove
their livestock and building materials from the applicants ’ properties.1
[5] The applicants explain that Portion 3 was duly subdivided to provide for
the settlement land to become an independent portion of land, which is now
known as Portion 4 (a portion of Portion 3) of the Farm Hartebeesfontein 134
(the Community land) . The Community land was transferred and registered to
the State on 23 July 2028 . The ap plicants aver that they gave notice to vacate
after 180 days but Mr Ngwenya failed to comply. A further notice was served
on Mr Ngwenya personally on 24 May 2019 and he was requested to vacate
by 30 April 2019. Mr Ngwenya still resides on portion 3 and has failed to
vacate to the Community land. His livestock continues to graze on Portion 3.
[6] Mr Ngwenya opposes the application. He confirms that he resides on
Portion 3 where he says he has resided for a very long time, before the current
farmer came to the land. He explains that he is the only family residing on
Portion 3, which – he says – was the position when the restitution claim was
lodged. Accordingly, he is the only one affected by the relocation
contemplated by the agreement . He contends that he was not made aware of
the settlement agreement or the condition that he relocates. He was aware that
there were settlement negotiations but not that they were concluded on the
basis alleged. He says that the agreement was concluded by their attorney or
representative of the Commission on the Restitution of Land Rights (the
Commission). He contends that he was also not aware of the Mpshe order
1 Paragraph 2 reads: ‘Mr Mandla John Ngwenya and all persons occupying [Portion 3] with him and through him,
undertake to vacate the homesteads currently occupied by him and his family on [Portion 3] within one hundred
and eighty (180) days from date of regi stration of transfer of the subdivision in the name of the State and to remove
all his; their livestock and building materia ls from any of the properties of the [Applicants] .’
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saying that there is no proof that the order was served on him and he was not
aware of it at any stage . Regarding the Community ’s land, Mr Ngwenya avers
that the land is where the Hartbeesfontein Trust accommodates its labourers
and that none of the claima nts have moved there .
[7] He states unequivocally that he has no intention to vacate the portion
where he resides and that the Community land does not have enough grazing
and no source of water.
[8] The applicants seek the following relief:
a. An order directing Mr Ngwenya to comply with the order within 30
calendar days;
b. Should he fail to do so, an eviction order is sought;
c. An order declaring Mr Ngwenya to be in contempt of court;
d. The imposition of a fine or a period of imprisonment suspended on
such conditions the Court deems fit.
The duty to obey court orders and the law on contempt
[9] The Constitutional Court recently held in Zuma :2
‘It cannot be gainsaid that orders of court bind all to whom they apply. In fact, all orders of
court, whether correctly or incorrectly granted, have to be obeyed unless they are properly
set aside. This, in addition to typifying common sense, the Constitut ion itself enjoins.
Section 165(5) of the Constitution itself provides that an order or decision binds all persons
to whom it applies. The reason being that ensuring the effectiveness of the Judiciary is an
imperative. This has been confirmed in multiple c ases, including Mjen i in which the Court
2Secretary of the Judicial Commission of Inquiry into Allegations of State Captu re, Corruption and Fraud in the
Public Sector including Organs of State v Zuma and Others [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021
(5) SA 327 (CC) ( Zuma) para 59.
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stated that “there is no doubt, I venture to say, that [complying with court orders] constitutes
the most important and fundamental duty imposed upon the State by the Constitution ”. …’
[10] In Pheko II Nkabinde J held:3
‘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, orders 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 orders 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. ’
[11] The approach to contempt of court was recently restated in Zuma as
follows (footnotes omitted):4
‘As set out by the Supreme Court of Appeal in Fakie , and approved by this Court in Pheko
II, it is trite that an applicant who alleges contempt of court must establish that (a ) an order
was granted against the alleged contemnor; (b) the alleged contemnor was served with the
order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order.
Once these elements are established, wilfulness and mala fides are presumed and the
respondent bears an evidentiary burden to establish a reasonable doubt. Should the
respondent fail to discharge this burden, contempt will have been established. ’
[12] To the extent that the applicants seek a committal or imposition of a f ine,
the standard of proof applicable to the proceedings is proof beyond a
reasonable doubt, whereas proof on a balance of probabilities suffices where
3 Pheko and others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10; 2015(5) SA 600 (CC);
2015(6) BCLR 711 (Pheko II ) para 1 .
4 Para 37.
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the remedies sought ‘do not have the consequence of depriving an individual
of their right to freedom an d security of the person. ’5
The issues
[13] In his answering affidavit, Mr Ngwenya raises a series of preliminary
points. However, his representative did not persist with these at the hearing of
the matter. The only preliminary question that arises for decision is whether
the respondent ’s late filing of the answering affidavit should be condoned and
bar uplifted.
[14] On the merits, t he evidence establishes without doubt that the M pshe
order was granted and that Mr Ngwenya has not complied with it. The issues
distilled from the affidavits a nd persisted with in argument a re:
a. Whether Mr Ngwenya was served with or had knowledge of the
order ;
b. If so, w hether he was in wilfil and mala fide breach of the Court
order.
Condonation
[15] I have considered the application s to uplift bar and for condonation and
the response s thereto and am satisfied that the interests of justice demand that
condonation be given on the facts and ci rcumstances of this c ase.6 There is a
sufficient explanation for the delay s, these are contempt proceedings where
the need to hear the respondent ’s version looms large in view of the potential
5 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation
Solutions (Pty) Limited [2017] ZACC 35 ; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) ( Matjhabeng Local
Municipality ) para 67 in which the preceding paragraphs are summed up.
6 Van Wyk v Unitas Hospital and another [2007] ZACC 24; 2008(2) SA 472 (CC); 2008(4) BCLR 442 (CC)
para 20 to 22 .
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consequences of the relief sought . The answer raises important facts relevant
to an assessment of the respondent ’s knowledge of the order and state of
mind. Moreover, the applicants had a fair opportunity to reply, which they
have done .
Service or knowledge of the order
[16] The respondent contends that the application should be dismissed
because the applicants have not demonstrated that the court order was served
on him personally. It suffices, however, if Mr Ngwenya had knowledge of the
order.
[17] The applicants allege that Mr Ngwe nya knew of the order as, by his
own admission, he was in Court when the matter was settled and made an
order of Court . This, however, is disputed, and on Mr Ngwenya ’s version, he
was not aware of the settlement of the matter that day. These are motion
proceedings and the facts are to be determined on the principles articulated in
Plascon Evans and Wightman.7 Accordingly, in these proceedings, I accept Mr
Ngwenya ’s version. The applicants do not rely on service th at alleged took
place on Mr Ngwenya ’s wife on 16 October 2018 as the Sheriff subsequently
informed the applicants ’ attorney that service was on the incorrect Mrs
Ngwenya.
[18] However, the applicants have in my view established , on a balance of
probabilities but not beyond reasonable doubt , that Mr Ngwenya was served
with and , in any event, had knowledge of the order . In this regard, they plead
7 Plascon -Evans Paints v Van Riebeeck Paints 1984 (3) 623 (A) 634H -635C; Wightman t/a JW Construction v
Headfour (Pty) Ltd and another [2008] ZASCA 6 ; 2008 (3) SA 371 (SCA) para 13.
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personal service on Mr Ngwenya of a notice on 24 May 2019 . They allege:
‘On 24 May 2019, a further notice was served on the Respondent personally,
again informing him that [the Community land] was transferred and registered
in the name of the State and stating that the Respondent had failed to comply
with the Order to vacate the Farm. The Respondent was also given to 30 Apr il
2019 to comply with the Order. A copy of the Order was also attached to the
Notice served by the sheriff. ’ The applicants supply a copy of the Sheriff ’s
return which confirms personal service of the notice . The return does not
expressly refer to the order.
[19] The notice is headed ‘Court Order dated 18 March 2016’ and reads :
‘We refer to the abovementioned matter and confirm that the Sheriff of the district at Piet
Retief served a No tice on Ms Ngwenya on the 16th October 2018 in which Notice you and
all persons occupying [Portion 3] were informed to vacate the farm and to relocate to the
Portion of the farm bought by the State.
In the said letter, you were informed that the transfer and registration of the property to the
State took place on 23 July 20 18 and that you had to vacate the farm on/or before January
2019 in compliance with the Court Order given on 16 March 2016 .
You are again hereby noti fied to vacate Portion 3 of the farm Hartebeesfontein together
with your family member s, livestock and all building materials and relocate to the
[Community land].
You are hereby notified that you have failed to vacate [Portion 3[ within the 180 days from
date of registration of the transfer of the Portion into the name of the State.
…
You are hereby given a f inal opportunity to vacate the farm on / or before 30 April 2019
whereafter an application for your eviction will be launched in the Land Claims Court of
South Africa held at Randburg . A punitive cost order will be requested against you as a
result of your failure to adhere to the abovementioned Court order and notice thereafter.
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Please find attached a copy of the said Court Order given by the Land Claims Court of
South Africa on the 18th March 2016 together with the Notice dated 5 October 2018
served by the She riff on the 16th October 2018, attached to this further notice. ’
[20] In answer, the respondent denies service pointing to the fact that the
return of service does not record that the Court order was served, only the order.
In argument , counsel largely pinned the defence on the absence of personal
service of the order. In my view, this is not an adequate answer both because
the notice refers to the order in its substantive content and t he respondent would
thereby have acquired knowledge of it and because the notice itself refers to
the fact that the order was attached to it. On the latter, t he absence of express
reference to the order by the Sheriff is not in my view fatal in this case as the
order was part of the notice .
Wilful and mala fide breach
[21] In my view the evidence shows without doubt that non -compliance is
wilful. Indeed , Mr Ngwenya makes it quite plain that he has no intention of
complying with the order . The mo re difficult question is wh at the evidence
establishes on whether Mr Ngwenya is mala fide. In this regard, Mr Ngwenya
in his answering affidavit takes issue with the status of the settlement
agreement saying he did not consent thereto, while the Community ’s lawyer or
the Commission may have. In response, the applicants contend, correctly that
the order stands and must be complied with unless and u ntil set aside. The
respondent has not and does not seek any such relief despite the lapse of a
significant period of time . While correct, however, this does not speak to the
respondent ’s state of mind and specifically whether he is in good or bad faith.
[22] In my view, in light of the respondent ’s evidence, the applicant s have
not established that the re is mala fide non-compliance with the order. Rather it
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appears that Mr Ngwenya believe d, incorrectly, that he was not obliged to
comply with the order in circumstances where he says that he did not consent
to it. While the applicant disputes this, these are motion proceedings , and I
accept Mr Ngwenya ’s version. At this juncture, however, these circumstances
can no longer explain any ongoing non -complian ce, and there can at this stage
be no doubt that the respondent is now fully aware of the Mpshe order.
Relief
[23] In the result, the applicants are not entitled to any relief under the civil
contempt remedy at least at this stage. They are, however, entitled to an order
requiring Mr Ngwenya to comply with the Mpshe order . In view of the
substantial disruption this will entail, I have extended the time to do so. There
can be no doubt at this stage that Mr Ngw enya is aware of the order. Indeed,
his counsel submitted that he would comply with the order as long as i t was
served on him . He has not applied to have it rescinded. If non -compliance is
ongoing in the face of this judgment, and in the absence of any r escission of
that order, different considerations would apply.
[24] I am not satisfied that the applicants are entitled to an eviction order.
These are not eviction proceedings and , assuming the Extension of Security of
Tenure Act 62 of 1997 is applicable, its requirements have not been pleaded.
[25] In the absence of special circumstances, this Court does not ordinarily
grant costs. I am not satisfied that there are special circumstances in view of
the findings in this judgment. Again, different considerations may apply should
non-compliance persist.
Order
[26] The following order is made: