IN THE HIGH COURT OF SO UTH AFRICA
[EASTERN CAPE DIVISION: BISHO]
CASE NO.: 299/202 2
In the matter between:
MONDE AUSTIN SHUDE APPLICANT
and
THE MEMBER OF THE EX ECUITVE COUNCIL,
DEPARTMENT OF EDUCATION 1ST RESPONDENT
THE HEAD OF THE DEAPRTMENT,
DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE 2ND RESPONDENT
JUDGMENT
MTSHABE AJ
[1] Section 2 of the Constitution1 provides as follows : “Supremacy of
Constitution: This Constitution is the supreme law of the Republic; law or
1 Constitution of the Republic of South Africa, 1996
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conduct inconsisten t with it is invalid, and obligations imposed by it must be
fulfilled” .
[2] Further , section 165(5 ) provides as follows : “An order or decision issued by a
court binds all persons to whom and organs of state to which it applies”.
[3] Further, s ection 239 of the Constitution defines organ of state as : “(a) any
department of state or administration in the national, provincial or local sphere
of government ”.
[4] The above provisions bear mention, and my view is that they are relevant to
these proceedings.
[5] The applicant is a retired educator, who retired on 3 1 January 2014. He
approached this court on 20 January 2022 under Case No. 782/18 . He was
granted an order by th e Honourable Court which reads as follows :
1. “The condonation is granted in respect of the late filing of the
Respondent’s answering affidavit.
2. That the applicant’s application for the amendment, the notice of
motion is granted, and the notice of motion is amended according ly.
3. The Respondents are hereby directed to take such administrative or
other steps as maybe necessary to coll aboration with the Government
Employees Pension Fund and to the latter’s satisfaction so as to give
recognition to the applicant’s un interrupted pension able service ,
calculated from 1 February 1974 to 31 January 2014 and to deliver to
the applicant’s attor neys and to the registrar of this Court proof of
dispatch of such documents forwarded to the Government Employees
Pension Fund and of the latter’s receipt thereof.
4. The Respondents are directed to pay the cost of the application jointly
and severally, the one paying the other to absolve d.”
[6] The a bove Court order was served upon the respondents ’ attorneys on 1st
February 2022 and to the first and second respondents on 23 March 2022
respectively2.
[7] To prove that the Respondents received the court order, the y sent an
acknowledgement of receipt on 2 4 March 2022 and the letter reads as follows :
“I advise that we are attending to comply with the court order and Mr Dalisile
will revert with progress herein.”
[8] On 23 March 2022, the Applicant’s attorneys wrote a letter to the
Respondents which reads as follows :
“Monde Austin Shude - Compliance with Order Granted in Case
No.782/18.
Our clients report that you have not complied with attached order and that our
client’s pension benefits remain unfulfilled.
We wrote to your attorney on 1 February 2022 attaching a copy of the order.
You were represented at the hearing by the State Attorney who instructed
Advocate Mayekiso and presumably received a copy of court ord er as far as
back as 20 January 2022 .
Please note that if we have not been provided adequate proof that paragraph
3 of the order has been complied with within 10 days, we will be obliged to
launch further proceedings .”
[9] On 24th March 2022 the Acting Director -Legal Services for Department o f
Education, East London, namely, Ligaser ee Pillay wrote an email, which reads
as follows : ‘’I advise that we are attending to comply with the court order and
Mr Dalisile will revert with progress herein ”.
[10] Mr Dalisile never reverted to the applicant’s attorneys .
2 See: Letters marked MS2 and MS3 attached to the founding affidavit
[11] On or about 13 May 2022, almost 5 months after the order of 20 January 2022
was granted, the applicant brought the present proceedings under Case No.
299/2022 , applying for an order along the following te rms:
1. ‘’Directing that the Respondent s’ failure to comply with the order
granted by this Honourable Court on 20 January 2022 in Case No.
782/18 directing that they take appropriate administrative action in
collaboration with the Government Employees Pensio n Fund to give
recognition to the Applicant’s uninterrupted pensionable services,
calculated from 1 February 1974 to 31 January 2014 and to delivered
to the Applicant’s attorney s and to the Registrar proof of dispatch of
such documents, constitutes an ongo ing variation of their duties under
the Constit ution of the Republic of South Africa , 1996.
2. Ordering , the Respondents :
2.1 To take all the administrative and other steps necessary to ensure that
the Eastern Cape Government complies with the order referred to in
paragraph 1 above within 10 days as from the date of service of the
further order granted herein by taking the aforemen tioned
administrative steps; and
2.2 To deliver a report in writing to the R egistrar of this Honourable Court
and to the Applicant’s attorneys within 10 days of the matter and extent
of their compliance with the order in paragraph 2.1 above.
3. Directing that if Respondents failed to comply with the order referred to
in paragraph 2 above, the Applicant is given leave to supplement his
Notice of Motion and founding affidavit and to enrol this application for
a further hearing on and determination of such further relief and
complaints of contempt of court as the Applicant might then seek.
4. Directing that this order be served by fax or email.
5. Granting such further and/or alternatively relief as the above of
Honourable court may see meet .
6. Directing that the First Respondent pay the Applicants cost s”.
[12] The Respondents on 20th September 2022 filled a Notice to Oppose the
application under Case No. 2 99/2022 . A compliance affidavit was filled by Ms
Nozibele Xhoseni who a Chief Personal Officer is and stationed at Chris Hani
West District with offices at Cacadu, Lady Frere. In paragraph 4 of the said
affidavit the following is stated by her :
“I hereby confirm that I h ave duly complied with the court order in that I
have complet ed the pension forms and resubmitted them to the
Government Employee s Pension Fund as required ”.
Paragraph 5 reads as follows : “As proof thereof I attach a copy of an
email communication from the Government Employees Pension Fund
which confirms receipt of the said mention claim forms and the same is
marked MX13.
[13] On 19th October 2022, the Applicant served an affidavit read headed:
“APPLICANT’S SUPPLEMENTARY AFFIDAVIT .” The Applicant s tates in
paragraph 2 of the affidavit that the Respondents have delivered a
compliance affidavit she purports to record compliance with the Honourable
Court ’s order. The supplementary affidavit informs that the Respondents have
not complied with the court order, and they have not delivered an answering
affidavit. I must mention that the delivery of the answering affidavit is in
accordance with the rules of the court, where the Respondent has filed a
notice to oppose.
[14] The matter dragged in court and nu merous communications ensued the
parties, wherein the Applicant continued to asse rt that the Respondents have
3 Respondent’s compliance affidavit, paragraphs 4 and 5 thereof
not compl ied with the court order of 20 January 2022. The matter came to
court on 26 March 2024 and by that time the Respondent s have not complied
with the court order dated 20 January 2022. I must mention that at all times
the matter applies in court, either for postponement or removal of it the roll the
Respondents were ordered to pay costs. I am not going to go over the court
orders that were gra nted against the Respondents to pay costs such appear
in papers.
[15] On 26 March 2024 the Honourable Madam Acting Justice Ncalo granted an
order along the following terms :
1. The Respondents ’ failure to comply with order granted of Court
dated 20 January 2022 as per Case No. 782/18, directing that
they take such appropriate administrative action in collaboration
with the Government Employees Pension Fund to give
recognition to the Applicant’s uninterrupted pension service,
calculated from 1st February 1994 to 31st January 2014 and to
deliver to the Applicant’s Attorneys and to the Registrar of Court
proof of dispatch of such documents, constitutes and ongoing
violation of their duties under the Constitution of Republic of
South Africa.
2. That the Respondents are ordered :
2.1 take all administrative and other steps necessary to
ensure that the Eastern Cape Government complies with
order referred to in paragraph 1 above within 20 days as
from the date of service of this order by taking the
aforementioned administrative steps; and
2.2 To deliver a report in writing to the Registrar of the court
and to the Applicant’s Attorney within 20 days from th e
date of service of this Order, of the manner and of the
extent of their compliance with the Order referred to in
paragraph 2.1 above.
3. If the Respondents fail to comply with order referred to in
paragraph 2 above, the Applicant is given leave to sup plement his
notice of motion and founding affidavit and to enrol this matter by
further hearing on the determination of such further relief and
complaints of contempt of court as the Applicant might then seek.
[16] The above court order was served upon the Respondents on 18 April 2024.
[17] In terms of the Court Order dated 26 March 2024, the Respondents were
granted 20 days within which to comply with paragraph 2.2 thereof, however,
the Respondent’s did not comply with the court order.
[18] The Respondents filed an answering affidavit, on 12 July 2024, however there
was still non-compliance with order that was granted on 20 January 2022 as
well as the order granted on 26 March 2024.
[19] The Applicant, set down the application for contempt of court, seeking the
following order :
1. Directing that the first Respondent being Mr Fundile David Gade and
second Respondent being Ms S Maasdorp be committed to
imprisonment for such period as to this Honourable Court may seem
meet, for failing to comply with the orders granted on 20 January
2022 and 26 March 2024, more particularly paragraph 2 of the latter
order.
2. Directing that the Respondents pay the Applicants costs.”
[20] On 29th October 2024, the Applicant set down the Application for contempt of
court for hearing on Thursday 13th February 2025. I must mention that all the
necessary affidavits were filed, and the matter was ready to be held as an
opposed application on 1 3th Febru ary 2025.
4 Annexures MA S 1 and MA S 2 attached to the supplementary affidavit
[21] The Respondents on or about 27 November 2024 filed an affidavit deposed to
by Ms Buhle Mary Mandontsela, who is a Director for Human Resources
Administration for the first Respondent, whose office s are situated at Steve
Vukile Tshw ete, at Zwelitsha. In the Affidavit she informs that the Respondents
have complied with the court order and to that extent she has filed a copy of the
quotation for the calculation of area contributions including late payment
interest accrued which is valid until 30 September 2024.
[22] During the hearing of this matter both Counsel informed me that it does
transpire that the affidavit of Marry Mandontsela together with the annexure
thereto suffice to confirm compliance with the court order s.
[23] Both of them informed that the issue for determination is the question of costs.
[24] In order to find that the Respondents are liable for the payment of costs I need
to establish whether the y were in contempt of the court orders granted on 20
January 2022 and 26 March 2024.
[25] In the case of Attorney -General5 the court stated the following, dealing with
contempt of court :
“Probably in the last resort all cases of contempt, whether consisting of
disobedience to the de cree of the court or the publication of matter tending to
prejudice the hearing of the pending suit or of disrespectful conduct or insulting
attacks, are to be referred to the necessity for protecting the fount of justice is
maintaining the efficiency of the courts and enforcing the supremacy of the
law.”
[26] In Fakie NO6 court stated the following :
5 Attorney -General v Crocket t 1911 TPD 9 23 at 925 -926
6 Fakie N \O v CC 11 Systems ( Pty) Ltd 2006 (4) SA 326 SCA at 332A
“It is crime unlawfully and intentionally to disobey a Court Order. This type of
contempt of court is part of the broad er offence, which can take any forms, but
the essence of which lies in violating, the dignity, repute o r authority of the
Court. The offence held, in general terms, received a Constitutional stamp of
approval, since the rule of law -a founding value of the Constitution -requires that
the dignity and authority of the Courts as well as their capacity to carry out their
functions, should always be maintained”.
[27] In this case, the Applicant obtained two different court orders one on 20 January
2022 and the other on 26 March 2024, requiring the Respondents to take such
appropriate administrative action to give recognition to the uninterrupted
pensionable service of t he Applicant from 1st February 19 74 to 31 January
2014. The Respondents did not comply with such orders until the matter was
set down for hearing of 13th February 2025.
[28] My view is that if a litigant, in this case the Applicant, has obtained a Court o rder
requiring an opponent to do or not to do something and there is non -
compliance, that litigant has a right to approach the Court for a further order
declaring the non -complian t party in contempt of court and for the imposition of
a sanction which usually, but not invariably, has the object of inducing the non -
complie r to fulfil to the terms of the previous order.
[29] In this case, the Applicant approach the Court under Case N o. 782/2018 and
was granted an order, of importance is paragraph 3 which required the
Respondents t o take administrative or other steps as maybe necessary in
collaboration with the Government E mployees Pension Fund to calculate the
Applicant ’s uninterrupte d pension service form 1 February 1 974 to 31 January
2014 and to delivered to the Applicant’s Attorneys and to the Registrar of this
court proof dispatch of such documents. The order as I I have indicated above
was serve upon the Respondents.
[30] The Applicant again approach the Honourable Court under Case No. 2 99/2022
requesting the Respondents to comply with court order granted on 20 January
2022 . Again, under Case No. 299/2022 the C ourt granted an order in terms of
the Notice of Motion which I have referred to above on 26 March 2024. The
said court order was also served upon the Respondent s, however, there was
another non -compliance by the Respondents wit h that order.
[31] In the case of Uncedo Taxi Association 7 the court stated the following : “The
civil standard of proof has hitherto been applied in applications of this nature. In
order to succeed in an application committing an offender to prison for
contempt of court the Applicant must prove;
(a) That an order was granted against the Respondent.
(b) That the Respondent was either served with the order o r was informed
on the grant of the order against and could have no reasonable gro und
for disobeying the information; and
(c) That the Respondent is in wilful and mal a fide disobedience of the
order”.
[32] In Putco Ltd8 the court stated the following : “Once a failure to comply with an
order of court has been established, the wilfulness wi ll normally be inferred,
and the onus will rest on the person who failed to comply with such order to
rebut the inference of wilfulness on a balance of pro babilities . This can be
done by such person establishing that he did not intentionally disobeying the
court’s order.”
[32] My view as far as the case before me is concerned is the Applicant has
prove d that the orders were served upon the Respondents, and the
Respondents have failed to comply with the court orders.
[33] In case of Secretary Judicial Commotion v Zuma 9 the court, dealing with
contempt of proceedings stated the following referring to the case of
Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018
(1) SA (CC) stated that :
7 Uncedo Taxi Association v Maninjwa and Other 1998 (3) SA 417 (E) a t 425
8 Putco Ltd v TV and Radio Guarantee Co (Pty) Ltd and Other related cases 1985 (4) SA 809 (A)
9 Secretary Judicial Com mission v Zuma 2021 (5) SA 327 (CC)
“This court explicated the overall scheme of contempt of court in our law .
Traditionally, contempt of court has been div ided into two categories
according to whether the contempt is criminal or civil in nature. These types
of contempt are distinguished on the basi s of the condu ct of the contemnor .
Criminal contempt brings the moral authority of the judicial process in to
disrepute and as such co vers a multiplicity of condu ct interfering in matters of
justice pending for the court. It there by creates serious risk of prejudice to t he
fair trial of particular proceedings…. Civil contempt, in contrast, involves the
disobedience of court order s. The continued relevance distinction between
civil and criminal contempt also seems to lie on occasion, in the ability to
settle the dispute and wa ive the content ”. The Court continued to state the
following:
‘Civil contempt , which is one str ain of the broader offence of contempt,
consists in the wilful and the mala fide obedience of civil court or order.
It appears to have been received into South African Law from English
Law, which characterise s civil contempt in the following terms: Civil
contempt bears a twofold character, implying as between the parties to
the proceeding s merely a right to exercise and a liability to submit to a
form of civil execution, but as between the party in default and state, a
penal o r disciplinary jurisdiction to be exerc ised by the court in the
public interest.’”
[34] Section 237 of the Constitution provide s that all Constitutional obligation s
must performed diligence and without delay. One of the Constitutional
obligations, in my view lies in Section 165(5) of the Cons titution which
provides that an order or decision issued by court binds all persons to whom
and organs of state which it applies. Further, Section 2 of the Constitution
provides obligation imposed by the Constitution must be fulfilled.
[35] Therefor e I am of the view that the court orders of 20 January 2022 and 26
March 202 4 should have been complied by the Respondents without a delay.
Respondents have failed to perform their Constitutional obligations. In
Khumalo and another v M EC for Education, Kwa Zulu-Natal10 the court
stated the following:
“Section 237 of the Constitution p rovides; all Constitutional obligations must
be performe d diligently and without delay. Section 237 acknowledges the
significance of timeous compliance with Constitution p rescripts . It elevates
expeditious and diligent compliance with Constitutional duties to an obligation
in itself. The p rinciple is thus a requirement of legality. ”
[36] The Constitutional imperative that constitutional obligations must be
performed diligently and without delay , in my view, has as its foundation the
necessity for administrative finality and certainty . In this regard, in my view,
the conduct of the Respondents in taking so much time to comply with the
court order is unacceptable. The Respondents complied with ord ers after the
matter was set down for hearing in the oppose court on 13th February 2025.
To that extent, they filed an affidavit which I have referred to it above.
[37] I therefore find that the Respondents were in contempt of the court orders,
until the matter was down for oppose court hearing o n 13th February 2025, as
per notice of set down , which is dated 29 October 2024 and was served upon
the office of the State Attorney on 30th October 2024.
[38] As I have indicated above the Respondents filed compliance affidavit on 7
November 2024. The date of 7 November 2024 appears on the affidavit, and I
have no reason to assume it was not served on that day, whoever, there is no
notice of filling which accompan ying the said compliance affidavit. There is
also no application for the filing of a further affidavit as the three required
affidavits have been filled.
[39 I must mention that costs in civil proceedings are made two scales, that is, the
party and scale or the attorney and client scale. Costs awarded on the party
and party scale allows the person in favour of whom it is made to recover the
10 2014 (5) SA 579 (CC)
costs they have had to incur in bringing the civil suit but to the extent allowed
by the set of tariffs designed to k eep the coverable costs with in the reasonable
limits.
[40] It is becoming a norm and in compliance with the rules of court as amended,
that when a court is granting co sts order it should grant them in accordance
with rule 67A of the Uniform Rules of Court read with rule 69.
[41] Rule 67A of the Uniform Rules of Court came to operation on 12th April 2024
and provides as follows; “67A COSTS.
(1) Subject to any order of the court awarding costs, the fees and
disbursements as between party and party , which may be included in a
bill of costs submitted for taxation, shall be -
(a) For attorneys, in accordance with the tariff in rule 70;
(b) For attorneys, with a right to appear in the Supreme Courts and
who appear in the matter in accordance with Rules 69 and 70,
where applicable; and
(c) for Advocates, in accordanc e with the tariff in rule 69 : Provided
that for services rendered by an advocate referred to in Section
34(2)(a)(ii) of the Legal Practice Act, 2014 (Act No. 2 8 of 2014 ),
for work which is ordinarily performed by an attorney, the fee for
such work shall be in terms of rule 70.
(2)…….
(3) ……..
(4)………..
(5) The taxation of fees as between party and party shall be effected by the
taxing master in accordance with rule s 69 and 70 and applicable tariffs
therein.”
[42] Rule 67 further provides that a costs order shall indicate the scale in terms of
rule 69 . In awarding the appropriate scale of costs, the Court is required to
have regard to the complex ity of the matter, and the value of the claim or the
importance of the relief s ought. Whilst this matter is not complicated, I am of
the view that the relief sought is very important, particularly that it affects the
violation of Constitutional obligations . It will be observed in this matter that the
Respondents violated the Constitu tion of Republic of South Africa. The
Respondent s are expected at all times to comply with obligations in the
Constitution without delay and they should be an example to the general
public and show the importance of abiding by the provisions of the
Constit ution diligently and without delay.
[43] In the matter Mashavha 11 the court stated the following at paragraphs 16
and 17:
“16. Likewise , the default position set under the rule is that, in the absence of
contrary indication, counsel’s costs will be recovered on scale A. Scale
A, it seems to me, is the appropriate scale on which to make an award
unless the application of the higher scale has been justified by careful
reference to clearly identified features of the case that mark out as
unusually complex, important or valuable. Run-of-the-mill cases, which
must be the vast majority of cases in the High Court, should not attract
an order on the B or C scales.
17. In the case presently before me, the issue s were uncomplicated . The
entire case was determined on the basis of jurisdiction and standing. The
merits never became relevant. Ther h earing lasted well under an hour. The
case was competently and ethically pursued by all concerned. The A scale
is being a pplicable.”12.
[44] Rule 69 of the Uniform Rules of Court deals with tariffs of fees for legal
practitioners who appear in Superior Court s. The rule provides that the scale
or fees contemplated in subrule (3) of rule 67A shall be scale A R375 .00 per
quarter of an hour, or part thereof, scale B R750 .00 per quarter of an hour or
party thereof and scale C R1125 . 00 per quarter of an hour or part thereof.
11 Mashavha vs Enaex Africa (Pty) Ltd 2025 4 (1) SA 466 (GJ) 22 April 2024
12 Buhle Waist v MEC of Health, Gauteng and others 2025 (2) SA 163
[45] Despite the introduction of Rules 67A and 69, the position still remains the
same, that the a ward of costs is the matter of wholly within the dis cretion of
the Court. But this is a judicial discretio n and must be exercised on the
grounds upon which a reasonable person could have come to the conclusion
arrive at13 see also14.
[46] For the reason stated above I grant the following order.
1. The Respondent s are ordered to pay the party and party costs of the
applica nt.
2. For all legal services pertaining to this application rendered by Counsel after
12 April 2024, the costs of Counsel s hall be taxed on Scale C of rule 69(7) of
the Uniform Rules of Court.
__________________________
N.R MTSHABE
ACTING JUDGE OF THE HIFH COURT
Appearances
Counsel for the Applicant : Adv CB Wood
Instructed by : Hutton and Cook
King Williams town
Counsel for the Respondents : Adv M Mayekiso
Instructed by : The State Attorney
East London
Date heard : 13 February 2025
13 Jordan v New-Zealand Insurance Company Ltd 1968 (2) SA 238 at 44 –D,
14 Ferre ira vs Levin and Others 1996 (2) SA 621 (CC) at 624
Date delivered : 03 June 2025