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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NO: 5158/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
························· lia -x \
DATE............ SIGNATURE .. . .....
In the matter between:
MAKGARI COMMUNAL PROPERTY ASSOCIATION
And
DEPARTMENT OF AGRICULTURE , RUAL
DEVELOPMENT AND LAND REFORM ,
LIMPOPO PROVINCE
MINISTER OF AGRICULTURE , RURAL
DEVELOPMENT AND LAND REFORM
REGISTRAR OF DEEDS, POLOKWANE
MRFUMANIMKHABELA Applicant
First Respondent
Second Respondent
Third Respondent
DEPUTY CHIEF-DIRECTOR, MINING
LIMPOPO PROVINCE 2
OFFICE OF THE AREA COMMISSIONER
DEPARTMENT OF CORRECTIONAL SERVICES
MRS A.T. RALEHLAKA
MALEBOGO TRIBAL AUTHORITY Fourth Respondent
Fifth Respondent
Seventh Respondent
Eighth Respondent
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 17 June 2025.
JUDGMENT
MAKOTI AJ
Introduction
[1] Contempt of court is at issue in this court application. The applicant, the
Makgari Communal Property Association (the CPA), wants a declaratory
order to the effect that the respondents are contempt of a court order that
was issued on 15 November 2018. Also, that the respondents should be
directed to issue it with a certificate of registration within 45 days of the date
of the order. The CPA bases its prayers on provisions of the Communal
Property Association Act.1 Applicant also want committal of the fourth
respondent who was not a party in the initial proceedings. It accused him of
collusion which led to the order not being complied with.
Act No. 28 of 1998.
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[2] On 15 November 2018 the court, per Semenya J, issued an order in the
following terms:
"1. The First and Second Respondents are directed to register the communal
property association of the Applicant within 45 days of the granting of the
order.
2. The Third Respondent is directed to effect a Title Deed rectification to reflect
the Applicant as the owner of the farm registered as "THE FARM,
LOUSENTHAL 365, REGISTRATION DIVISION MR, LIMPOPO PROVINCE,
2346, 5022,HECTARES, within 14 days of the registration of the constitution
of MAKGARI COMMUNAL PROPERTY ASSOCIATION".
[3] The seventh respondent , the Malebogo Tribal Authority, filed papers to
oppose the application. In the answering affidavit deposed to by Kgosi
Ngoako Isaac Legobo, the seventh respondent contends that the land
property in question, FARM, LOUSENTHAL 365, REGISTRATION
DIVISION MR, LIMPOPO PROVINCE, 2346, 5022,HECTARES (the
property) is its property. Accordingly, this court should not grant the orders
sought in this application.
Principles for contempt of court order
[4] The law on civil contempt is settled, and well documented. It is recognised in
our jurisprudence that civil contempt arises when a person ignores or
disobeys a court order in civil proceedings. The disobedience of a court
order must be wilful and malicious .2 In such instances, a court application is
instituted by the aggrieved party, quite often the party in whose favour the
order was granted, to enforce compliance with the order that was issued by
the court.
2 Frankel Max Pollak Vinderine v Menell Jack Hyman Rosenberg 1996 (3) SA 355 (A) at 367H
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[5] In Fakie NO v CCII Systems (Pty) Ltd3 the court expounded thus:
"6. It is a crime unlawfully and intentionally to disobey a court order. This type
of contempt of court is part of a broader offence, which can take many
forms, but the essence of which lies in violating the dignity, repute or
authority of the court. The offence has 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'." [Footnotes excluded]
[6] understand many the authorities on this point to be saying that it is an
affront to courts, their standing and dignity, as well as to the Constitution as
the supreme law of the Republic, for anyone to wilfully and maliciously
disobey court orders.
[7] Recently in Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector including Organs
of State v Zuma and Others4 the court had occasion to reaffirm the test for
contempt, and held as follows:
[8]
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4 "(37] 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 tides 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." [Footnotes excluded]
The contemnors in this case are the first to the third respondents. It is
undisputed that on 15 November 2018 the court granted an order which
Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March
2006).
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) (2021] ZACC 18; 2021
(9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021 ).
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directed the some of the respondents to perform certain functions. First, for
the first and second respondents to register the CPA. Second, once the
applicant is registered as CPA, for the third respondent to (within 14 days)
transfer the title deed for the property into the names of the CPA.
[9] What remains is for the applicant to show that the contemnors are aware of
the court order; that they have been served with it or are aware of it; and that
they have failed to comply with the order. I shall deal with these
considerations below.
Whether the first to the third respondents are in contempt of the court order
[1 O] There is a quick answer in respect of the third respondent, the Registrar of
Deeds. In paragraph 4.12 of the founding affidavit the applicant stated that
the third respondent indicated its inability to pass transfer of the property to
an unregistered CPA. The contention , in my view, falls within the terms of the
court order, which, at paragraph 2, specifically stipulated that the transfer of
the property shall be effected within 14 days from the date of registration of
the CPA.
[11] Registration of the CPA having not taken place, it cannot be argued that the
third applicant is guilty of contempt. The jurisdictional requirement has simply
not materialised yet. Thus, the application as against the third respondent is
premature and cannot succeed.
[12] Concerning the first and second respondents the case pleaded is that the
court order was brought to their attention. Several email exchanges have
taken place between the applicant's representatives and the officials of the
Department , regarding the registration of the CPA in compliance with the
order. Also, there has been meetings held between them. In paragraph 4.17
of the founding affidavit it is pleaded that:
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"The first respondent also contended, during the meeting held on 28
February 2023, that it wants to appoint a land enquiry Commissioner within
three months from the 28th February 2023 and that such Commissioner shall
render a report which will advise the second respondent about the future
conduct of the applicant's application for registration of the MCPA and for
the transfer of the Farm Louisenthal to MCPA. The court's attention is draw
to the fact an undertaking to appoint such commissioner was made in 2018
and was never fulfilled."
[13] The first and second respondents have not filed answering papers to this
application. I have no reason to not accept the point made by the applicant in
the above quoted paragraph, about the role of the first respondent. It was
also pleaded that the first respondent had informed the meeting of an
intention to consult with the Tribal Authority of Malebogo on the matter. This
is a reflection of knowledge of the order, at least in respect of the first
respondent.
[14] Not much is mentioned about the second respondent , the Minister
responsible for the Department. All that is canvassed in the application
relates to the role played by the officials of the Department , but who are not
facing the contempt application. That is, when and how was the court order
served on him or her, or how it was brought to his or her attention. I am not
in a position to presume that the Minister is in contempt of the court order.
[15] Guidance on how the presumpt ion of contempt operate was provided by the
court in Pheko v Ekurhuleni City5 in which it was held that:
5 " ... the presumption rightly exists that when the first three elements of the
test for contempt have been established , mala tides and wilfulness are
presumed unless the contemnor is able to lead evidence sufficient to create
Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) at para [36).
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a reasonable doubt as to their existence. Should the contemnor prove
unsuccessful in discharging this evidential burden, contempt will be
established."
[16] It is for that reason that I am unable to find against the minister, because I
find nothing to show that he or she had knowledge of the court order. In such
situation I am unable to find that the Minister acted in contempt of the court
order. Taking all of these factors into account, it seems that only the
Department can be held to be in contempt of the court order.
Prayer 3 of the notice of motion
[17] A case for the relief sought in this prayer is not made. First, the order which
the applicant is enforcing issued no directives against the fourth respondent.
There was a point made that he colluded with other parties. That case too
was not backed up. I refuse to hold the fourth respondent accountable in this
application.
Regarding the seventh respondent's opposition
[18] The case before me does not concern ownership of the property, just wilful
and malicious disobedience to the court's order. It is that right to ownership
that, in essence, the seventh respondent seeks to protect. Strangely , though,
it sought to make case that the application for contempt is vexatious. Section
2(1 )(b) of the Vexatious Proceedings Act reads thus:
"If, on an application made by any person against whom legal proceedings
have been instituted by any other person or who has reason to believe that
the institution of legal proceedings against him is contemplated by any
other person, the court is satisfied that the said person has persistently and
without any reasonable ground instituted legal proceedings in any court or
in any inferior court, whether against the same person or against different
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persons, the court may, after hearing that person or gIvmg him an
opportunity of being heard, order that no legal proceedings shall be
instituted by him against any person in any court or any inferior court
without the leave of the court, or any judge thereof, or that inferior court, as
the case may be, and such leave shall not be granted unless the court or
judge or the inferior court, as the case may be, is satisfied that the
proceedings are not an abuse of the process of the court and that there is
prima facie ground for the proceedings." [Emphasis added]
[19] There is nothing untoward with the application. It is not directed at the
seventh respondent. What this respondent is actually implying by contending
that the application is vexatious is that the case lacks merit. That it should be
dismissed for that reason. From what the legislation espouses, the two are
not synonymous. To firm this position I refer to the dictum in NK and Another
v 886 where the court held that:
6 "[15] Vexatious litigation includes the launching of various proceedings for
improper purposes, which includes the harassment and oppression of other
persons by the multifarious proceedings brought for purposes other than
the assertion of legitimate rights .... Again, I make no finding in this regard,
but remain of the view that the respondent has on numerous occasions
avoided the investigation of her home environment and her relationship with
her partner, by simply initiating further proceedings or disregarding court
orders and settlement agreements concluded between the parties."
[20] The applicant was granted an order by the court. Why it is argued that it
lacks locus standi to enforce the order and to hold those that it holds to be in
contempt, is unfathomable. In some other opposition ground the seventh
respondent pleaded the existence of material dispute of facts. That too is
vainly raised. The facts of this application are clear and uncomplicated. Much
farther from the case sought to be made by the seventh respondent. At best,
perhaps proverbially speaking, the seventh respondent has resorted to
throwing dust into the eyes of the court hoping to blind it as what is the case
to be decided. That case is, plainly, whether there is contempt and, if so, by
N.K and Another v B.B (30472/21) [2023] ZAGPJHC 1025 (15 August 2023).
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which party.
[21] In any case, the seventh respondent being aggrieved by the fact that it was
not cited when the application first went to court, has remedies in law that it
can pursue. This is not that stage. Its opposition on the grounds that it has
raised is misinformed and accordingly rejected.
Costs
[22] I was tempted to mulct the seventh respondent with costs. However, that is
not necessary. Properly assisted, it may have a case that may interest
another court, not this one. Thus, regardless of how I view the state of its
opposition, I merely criticise but spare it from an order of costs.
[23] The same cannot be said about the Department, which has illtreated the
applicant. Its promises have not been actualised, forcing the applicant into
instituting this application. That could have been avoided. So, too, the costs
of this application. I am alive to the principle that was set out in Kruger Bras
& Wasserman v Ruskin 7 where it was held that:
"The rule of our law is that all costs -unless expressly otherwise enacted -are in
the discretion of the Judge. His discretion must be judicially exercised but it cannot
be challenged, taken alone and apart from the main order without his permission".
[24] There is no reason why I should not exercise my discretion as to costs by
awarding them to the successful litigant. Even though I have dismissed the
application in relation to the second, the third, the fourth and sixth
respondents, I do not award them costs. None of them participated in this
7 1918 AD 63 at 69.
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application to be deserving of any favourable cost order.
[25] With everything said, it leaves only the first respondent to carry the costs of
this application.
The following is the court's order
[24] I make the following order:
[a] The first respondent is held to be in contempt of the court order
dated granted by Semenya J on 15 November 2018, and the first
respondent is ordered to:
[i] comply with the said court order within 40 days of the
date of this order; and
[ii] pay the costs of this application.
[b] Paragraph 3 of the notice of motion is dismissed.
[c] The application is dismissed in respect of the second and third
respondents.
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT 11
ADV L TSHIGOMANA
MASEWAWATLA ATTORNEYS
POLOKWANE
FOR SEVENTH RESPONDENT : ADV N GAISA
ESPAG MAGWAI ATTORNEYS
POLOKWANE