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LEBOGANG STEPHEN MAREKWA Tenth Applicant

BOITSHOKO DONALD SMOUS Eleventh Applicant

SELAELO KGOMOMMU Twelfth Applicant

MANDLA NTULI Thirteenth Applicant


and


PHUMUDZO FARANANI NDOU First Respondent

NDOU ATTORNEYS INC Second Respondent


Summary:

Contempt of Court – Allegation of Compliance on morning of hearing

Costs – Punitive Cost Order – law restated



REVISED REASONS FOR JUDGMENT


Z KHAN AJ

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[1] These reasons constitute a revision of the ex-tempore judgment I delivered in
the Urgent Court on 25 June 2025. The written transcript of the proceedings
was received on 7 August 2025.

FACTUAL BACKGROUND

[2] The matter was initially heard in the Urgent Court on 11 June 2025 as a fully
opposed application. The Applicants contended that the Respondents had
conducted themselves in a manner that defamed the Applicants.

[3] On 11 June 2025, Raubenheimer AJ granted interdictory relief in favour of the
Applicants. The portions of the court order pertinent to the present contempt
application read as follows:

‘2. Pending the final determination of action proceedings to be launched by the
applicants against the respondents within 30 days of this Order, the
respondents are interdicted:

2.1 from making, publishing, encouraging, repeating, or facilitating the
publication or making of, any defamatory and/or injurious statements as
made by the respondents in (1) the eNCA interview (as defined and
described at paragraphs 11,56 and 57 of the f ounding affidavit); (2) the
municipal meetings (as defined and described at paragraphs 40 and 61 to
66 of the founding affidavit); and/or (3) the Ndou petition ((“the petition”)

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described in paragraphs 7 to 11.3.6 of the supplementary founding affidavit,
including statements accusing or alleging that any of the applicants:

2.1.1. are (or have been found to be) criminals, thugs, rogue entities or corrupt;

2.1.2 have ‘captured’ the first Applicant (“the MEPF”), the Board of the MEPF, or
the Financial Sector Conduct Authority; or
2.1.3 have misappropriated funds from the MEPF, stripped it of assets or
engaged in fraudulent conduct in relation to MEPF properties;

2.1.4 any statements about any of the applicants which are substantially similar
to those listed 2.1.1. to 2.1.3 above. (sic)

2.2 to desist from canvassing any work from members of the MEPF on the basis
of the statements as set out in 2.1 above.

3. The respondents are ordered, within 2 (two) days of this Order, to:

3.1 publish a notice on the respondents’ social media accounts that the Order
has been granted;

3.2 withdraw the petition; and

3.3 alert and inform the respondents’ clients who are members of the MEPF
that the Order has been granted.”

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[4] On 14 June 2025, the Respondents filed an application for leave to appeal the
order granted by Raubenheimer AJ. As at the date of the present urgent
application, that application for leave to appeal had not yet been finalised.

[5] On 17 June 2025, the Applicants launched the present urgent application
seeking, among other things, a declaration that the Respondents were in
contempt of the order granted by Raubenheimer AJ. The relief sought
comprised: (a) a declarator of contempt; (b) an order compelling compliance
with the earlier order; and (c) a committal to prison or, alternatively, the
imposition of a fine. The Applicants further sought an order referring the
Respondents, as members of the legal profession, to the Legal Practice Council
for investigation, and an award of costs on the attorney -and-client scale,
including the costs of two counsel.

[6] The Applicants directed that the Respondents file their answering papers by
close of business on Wednesday, 18 June 2025, with the Applicants’ reply to
follow on 19 June 2025. The Respondents filed their answering papers on
Monday, 23 June 2025, at approxi mately 18h00, and the Applicants filed their
reply on 24 June 2025 after 17h00. The matter was thereafter presented in
court on 25 June 2025.

[7] The Applicants satisfied the requirement that the earlier court order be served
on the Respondents. Their complaint is that, notwithstanding such service, the
Respondents failed to comply with the order.

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[8] The court order made provision for the Respondents to withdraw the petition.
The Respondents had created an electronic petition hosted on a website. The
petition webpage contained two distinct features: (1) an online “click” button
enabling visitors to become signatories to the petition; and (2) an electronic link
to a separate webpage. Following the granting of the order, the Respondents
deactivated the online “click” button, thereby rendering it impossible for further
signatories to join the petition. However, the webpage itself was not removed.

[9] The order required compliance within two days of its grant. Upon expiry of this
period on 13 June 2025, the Applicants found that the petition had not been
withdrawn and remained active, allowing further members of the public to sign
up. Additionally, the Resp ondents failed to comply with the requirement to
publish the mandated notices on their social media accounts. The Applicants
supported their assertions by uploading screenshots of the relevant webpages.
Furthermore, the Respondents continued their infringing conduct by publishing
additional statements to ‘disgruntled members of the MEPF’, containing
allegations in breach of the order granted by Raubenheimer AJ.

[10] The Applicants wrote to the Respondents, calling on them to comply with the
court order. Subsequently, on 14 June 2025, the Respondents filed an
application for leave to appeal.

[11] In their answering affidavit, the Respondents contended that they believed the
application for leave to appeal suspended the court order. Notwithstanding this

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belief, they obtained legal advice from an unnamed Senior Counsel advising
compliance with the order granted by Raubenheimer AJ. The Respondents
further alleged in their answering papers that they had subsequently fully
complied with the order.

[12] In their reply, the Applicants attached further screenshots from the internet
demonstrating that the Respondents had not complied with the order granted
by Raubenheimer AJ after filing their answering papers, notwithstanding their
sworn allegations of complia nce. The Applicants sought that the matter be
referred to the Legal Practice Council on the basis that the Respondents, as
members of the legal profession, had made false statements under oath.

[13] On the morning of the hearing, I was approached in chambers by
representatives of both parties. The Respondents’ representatives informed me
that they had now fully complied with the order granted by Raubenheimer AJ to
the satisfaction of the Applicants, and that the matter need not proceed in the
Urgent Court, as the urgency had been addressed. Any further relief could be
pursued in the ordinary course before the Motion Court. Notwithstanding this,
the Applicants’ counsel persisted in seeking a declarator of contempt in respect
of the period during which there was no compliance.

[14] Later that morning, counsel for the Respondents argued in court that I should
decline to engage further with the matter, as the urgency had dissipated and
the matter could be removed to the ordinary motion court. I refused this
invitation, having regard to my di scretion and the fact that all relevant papers

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had already been considered. I was also mindful that it would serve no purpose
to burden another court with reconsidering the matter many months later.

[15] The Applicants argued for an order, including punitive costs, in light of the
egregious conduct of the Respondents. It was submitted that, notwithstanding
the removal of the petition “click” button, the petition webpage remained active
and, importantly, contained a link to another webpage hosting further infringing
material. The Applicants further demonstrated in their reply that the
Respondents’ other social media webpages continued to contain links to the
offending webpage as at the date of filing their reply.

[16] In response, counsel for the Respondents conceded that he could not dispute
the facts. The Respondents did not request leave to file further affidavits to
clarify the matters set out in the Applicants’ reply and nor were heads of
argument filed to explain the ir further position. I engaged with Respondents’
counsel regarding the requirements for civil contempt as set out in Fakie NO v
CCII Systems (Pty) Ltd 1 and satisfied myself that contempt had indeed been
established. Submissions by counsel for the Applicants in reply further
addressed the issue of contempt and the punitive costs order sought.

[17] Even if it were accepted that there was a misunderstanding regarding the
appeal—whether the Raubenheimer order was interim or final and whether it
was suspended by the application for leave to appeal—the Respondents could
not evade responsibility for the internet link that remained active on their social

1 2006 (4) SA 326 (SCA)

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media page. This link directed members of the public to a webpage containing
statements alleging a ‘fraudulent sale,’ a ‘romantic relationship’ between
directors, directors being ‘conflicted’ and ‘compromised,’ ‘corruption,’ a lack of
being ‘fit and proper ,’ ‘mismanagement,’ and similar allegations. These
statements are directly contrary to paragraph 2.1 of the Raubenheimer order,
which interdicted the Respondents from making, publishing, encouraging,
repeating, or facilitating the publication or making of any defamatory or injurious
statements.

[18] The Applicants appropriately addressed the Respondents’ argument that the
order was suspended by the application for leave to appeal by drawing attention
to the wording of the Raubenheimer order, which states:

"Pending the final determination of the action proceedings to be launched by
the Applicants against the Respondents within 30 days of this order, the
Respondents are interdicted..."

[19] Counsel for the Respondent was unable to take this point further.

[20] I found that the Respondents were in contempt of the Raubenheimer order for
a period of time. I refused to make an order referring the matter to the Legal
Practice Council. The Applicants remain at liberty to do so, as I indicated to the
parties during argument.

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[21] The events recorded above arise from the record, the events on the morning of
the hearing, and the ex-tempore judgment that I delivered.

APPLICABLE LEGAL PRINCIPALS REGARDING COSTS

[22] The Applicants sought punitive costs. These are cost orders made in
exceptional circumstances2.

[23] In Nel v Waterberg Landbouwers Ko -operatiewe Vereeniging3, a leading case
regarding attorney and client costs in South Africa, Tindall JA held that:

“[t]he true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special consideration
arising either from the circumstances which give rise to the action or from the
conduct of the losing pa rty, the court in a particular case considers it just, by
means of such an order, to ensure more effectually than it can by means of a
judgment for party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him by the litigation.”

[24] The Const itutional Court4 supported the approach in African Farms and
Townships Ltd v Cape Town Municipality5 in relation to punitive costs order for
actions that are vexatious and an abuse of process.

2 Erasmus Superior Court Practice at E12-26
3 1946 AD 597, referred to as such in Swartbooi v Brink 2006 (1) SA 203 (CC) at 213.
4 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1
5 1963 (2) SA 555 (A)

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[25] In Mkhatshwa and Others v Mkhatshwa and Others 6 the Constitutional Court
held that the purposes of punitive costs, being an extraordinarily rare award,
are to minimise the extent to which the successful litigant is out of pocket and
to indicate the court’s disapproval of a party’s conduct.

[26] In Public Protector v South African Reserve Bank 7, the Constitutional Court
reaffirmed this principle at paragraph [229]:

“A personal and punitive costs order should be granted only where the litigant’s
conduct is clearly mala fide, vexatious, or constitutes an abuse of process.
Courts must exercise caution not to discourage litigants from approaching the
courts.”

[27] One of the key objectives of contempt proceedings is to coerce litigants into
complying with court orders and to vindicate the rule of law , rather than to
punish the transgressors, although the Court may express its displeasure by
way of punishment.8

[28] The Labour Appeal Court in Plastic Converters Association of South Africa on
behalf of Members v National Union of Metal Workers of South Africa 9 states
as follows:

6 2021 (5) SA 447 (CC)
7 2019 (6) SA 253 (CC)
8 Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (TkH) at 456B.
9 2016 (ZALAC39)

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“The scale of an attorney and client is an extra ordinary one which should be
reserved for cases where it can be found that the litigant conducted itself in a
clear and indubitably vexatious and reprehensible manner. Such an award is
exceptional and is in tended to be very punitive and indicative of extreme
opprobrium”

[29] In President of the Republic of South Africa and Others v Gauteng Lions Rugby
Union and Another10 at paragraph [11], the Constitutional Court cautioned that:
“While courts have a discretion to award costs on an attorney-and-client scale,
such orders are reserved for exceptional cases where there is a clear
justification for departing from the ordinary rule.”

[30] In Johannesburg City Council v Television & Electrical Distribution (Pty) Ltd 11
the court held that

“. . . in appropriate circumstances the conduct of a litigant may be adjudged
"vexatious" within the extended meaning that has been placed on this term in a
number of decisions, that is, when such conduct has resulted in unnecessary
trouble and expense which the other side ought not to bear”.

[31] The Respondents indicated on the morning of the hearing that they had fully
complied with the Raubenheimer order, a compliance that was confirmed by

10 2002 (2) SA 64 (CC)
11 1997 (1) SA 157 (A) at 177 C – F.

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This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for hand-down is deemed to be 12h00 on 12 AUGUST 2025.

DATE OF HEARING: 25 JUNE 2025
DATE OF EX TEMPORE JUDGEMENT: 25 JUNE 2025
DATE OF REVISED JUDGEMENT: 11 AUGUST 2025


APPEARANCES:
COUNSEL FOR THE APPLICANTS: JPB McNALLY SC
B MANENTSA
ATTORNEY FOR THE APPLICANTS: WEBBER WENTZEL

COUNSEL FOR THE RESPONDENTS: D Du PLESSIS SC
(WITH JUNIOR)
ATTORNEY FOR THE RESPONDENTS: MORWASEHLA
ATTORNEYS