THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
(1)
(2)
(3)
REPORT A BLE : Y ES ,L.#0
OF INTEREST TO OTHER JUDGES : -¥e$/NO
RE V ISED :~ / NO
11 A ugust 2025
DATE
In the matter between:
-/ \ 7
S IGN AT URE
CARNABY WAY INVESTMENTS (PTY) LTD
and
DESIRE KOCH
NONOSI TRADING CC
TERSIA MASHALL ATTORNEYS
THE REGIONAL LEGAL PRACTICE COUNCIL
MPUMALANGA
CASE NO: 532/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
2
JUDGMENT
Msibi AJ
[1] The applicant requests that the first respondent be found in contempt of this
Court’s order dated 16 November 2023, specifically paragraph 2, which requires payment
of R615 988.78 into the third respondent’s Trust Account. The applicant also seeks an
immediate arrest warrant for the first respondent, with a minimum of one-month
imprisonment if they do not comply.
Background Facts
[2] On 16 November 2023, the applicant filed an application with this court under case
number 297/23 against the first respondent for an interdictory order in respect of funds
held by her, which were placed into her Trust Account by her client, the second defendant.
[3] The application was opposed by the second respondent, who was represented by
the first respondent at that time. It transpired during the hearing of the matter before
Pick AJ that the first respondent did not have a valid Fidelity Fund Certificate. The first
respondent conceded to this fact . As a result, t he court found that the first respondent
was unlawfully holding money in her Trust Account on behalf of the second respondent
and granted the following order:
“1 The first respondent is hereby interdicted from disposing of, paying out or in any
way dealing with the remaining portion of the funds that the second respondent h as paid
into her attorney’s trust account being an amount of R615 988,78 pending the finalization
of the action instituted by the applicant against the second respondent in this Honourable
Court under case number 269/2023
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2 The amount of R615 988,78 should be paid over into the trust account of Tersia
Marshall Attorneys for purposes thereof.
3 The aforementioned sum should be invested by T ersia Marshall Attorneys, and
interest should accrue to the successful party under case number 269/2023.
4 The first and second respondents are ordered to pay the applicants’ costs in this
application.”
[4] On 10 June 2024, the first respondent sought leave to appeal, claiming she could
not pay as the funds had covered the legal fees for the second respondent. The applicant
opposed, stating the money was allocated post -court order. The application was
dismissed with costs.
[5] In this application before me , the applicant argues that the first respondent is in
wilful default of the court order granted by Acting Judge Pick on 24 November 2023 .
Further, that on 4 December 2023 and 9 January 2024, correspondence was addressed
by the applicant to the first respondent inquiring if the money was paid to the third
respondent’s Trust Account.
[6] In her first response, dated 10 January 2024, the first respondent stated that she
has received instructions to bring an application for leave to appeal as soon as she is in
receipt of the Judge’s reasons. She also made an undertaking that no further fees had
been taken since the hearing in November 2023 and that she would keep the f unds in
abeyance, pending her application for leave to appeal . The applicant is relying on the
contents of the correspondence exchanged between the parties to confirm that the first
respondent was aware of the court order and is wilfully not complying with same.
[7] The first respondent conceded to the fact that she was present during the court
proceedings wherein Pick AJ reserved the judgment. She could deduce from the remarks
made by the presiding judge that the judgment would not be in her favour; as a result ,
she started preparing for an application for leave to appeal. She was never, prior to the
she started preparing for an application for leave to appeal. She was never, prior to the
service of this application, provi ded with a copy of the court order. While exchanging
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correspondence with the respondents, the applicant never included a copy of the court
order.
[8] The first respondent vehemently denied that the order was handed down in court
in her presence. Neither the court nor the Registrar had forwarded her a copy of the court
order, even though the presiding Judge had made an undertaking to forward the order
and reasons therefor to the individual parties. She only became aware of the order when
this application was served on her by the applicant.
Issues
[9] Based on these facts, the court must determine the following issues:
9.1 Whether the first respondent was aware of the court order.
9.2 Whether the applicant has discharged the onus of proof beyond reasonable doubt
that the respondent is in wilful contempt of the court order, and thus entitled to the orders
as sought against the respondent.
Legal Framework
[10] An application for contempt of court is a remedy available to parties whose rights
have been frustrated despite legal intervention and sanctions by our courts . All South
Africans have a duty to respect and abide by the law. In Zuma v Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture , Corruption and Fraud in the
Public Sector including Organs of State and Others,1 Jafta J in his dissenting judgment
stated as follows:
“Ordinarily therefore, a decision of this Court brings about finality in litigation. And this
finality in turn engenders legal certainty which produces legitimacy and public confidence
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of State and Others [2021] ZACC 28; 2021 (11) BCLR
1263 (CC) para 136.
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in our legal system. Both finality and certainty are components of the rule of law, a founding
value of our Constitution.”
[11] An attempt to evade any legal sanction s by the courts, especially court orders,
carries serious consequences as it also undermines the best interests of society at large.
If court orders are habitually evaded with relative impunity, not only is the justice system
discredited, but the general interests of society are also not adequately protected.
Disregard of court orders is an attack on the very fabric of the rule of law.
[12] In Fakie NO v CCII Systems (Pty) Ltd ,2 it was stated that t he requirements for
contempt of court are now trite and they are: the existence of a court order; the contemnor
must have been served with the order or have knowledge of the court order; there must
be non-compliance with the court order; and the non-compliance must have been wilful
or mala fides. Once the first three elements have been shown, wilfulness and mala fides
will be presumed, and the evidentiary burden switches to the contemnor.
[13] It has been recognised by our courts that where a committal is ordered, the
standard of proof in civil contempt matters must be the criminal standard. In those
circumstances, wilfulness and mala fides must be shown beyond reasonable doubt. See
Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited.3
[14] Put differently, the contemnor has an evidential burden to create a r easonable
doubt as to whether his conduct was wilful and mala fide. There is a different standard of
proof where no criminal sanction is sought; then, the standard of proof is that of a balance
of probabilities. While all wilful disobedience of a court order made in civil proceedings is
a criminal offence, civil mechanisms that are designed to induce compliance without
resorting to committal are competent when proved on a balance of probabilities.4 The
resorting to committal are competent when proved on a balance of probabilities.4 The
2 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).
3 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) para 61.
4 S v S.H [2023] ZASCA 49 para 20.
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hybrid nature of contempt proceedings , which results in committal, combines civil and
criminal elements. But this does not mean that contemnors are not afforded the
substantive and procedural protections which apply to any individual facing the loss of
their freedom.
[15] It is in light of the above that the issuing of a conditional warrant of arrest or refusal
thereof should be considered. Whether or not the conduct of the applicant was merely a
delaying tactic or resistance to the court order, this court should be alive to the potential
of an individual’s loss of liberty. It is therefore incumbent on this court to establish that the
appellant’s conduct was mala fide and wilful beyond a reasonable doubt.
[16] It was argued on behalf of the applicant that the first respondent is not a lay person
but an officer of the court. She was present as a litigant during previous court proceedings.
She would not refer to the Judge’s reasons and appeal proceedings in her
correspondence if she were not aware of the court order . The court was called upon to
consider the credibility of the first respondent’s version. If she were willing to comply with
the court order, she would have done so any time after being served with notice of this
application.
[17] Counsel for the first respondent argued that the applicant wants the court to infer
from the correspondence exchanged that the first respondent was indeed aware of the
order granted, although the appli cant never caused the order to be served on the first
respondent. The fact that she is an officer of the court does not override the requirement
that she should be served with notice of the order.
[18] It is not in dispute that a court order was granted against the f irst respondent on
24 November 2023. Secondly, the first respondent has not complied with the court order.
The first respondent’s argument that the order was not served on her could not be
disputed by the applicant during the proceedings before me . The applicant is indeed
disputed by the applicant during the proceedings before me . The applicant is indeed
calling upon this co urt to infer from the abovementioned objective facts that the first
respondent was aware of the court order.
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[19] As stated in Fakie and Others (supra), the applicant carries the evidential burden
of proof beyond reasonable doubt that the first respondent was aware of the court order.
The applicant argued that the application for leave to appeal was issued after service of
this application, but it was dismissed as condonation for the late filing of the leave to
appeal was not granted. The admitted knowledge of the order in their correspondence is
denied by the first respondent. As such , the first respondent could not comply with an
order that she had no knowledge of.
[20] As it was held in Matjhabeng Local Municipality (supra), the court must be satisfied
that failing to comply with the court order was wil ful and mala fide. Before the court can
investigate the applicant’s step of lodging an application for leave to appeal in order to
establish if it was indeed a delaying tactic aimed at frustrating the court order , the
background facts, service, or knowledge of the court order play an equally important role.
The fact that the first respondent has not paid the funds to the third respondent’s Trust
Account was argued to be an undeniable fact that indicated malice.
[21] It is accepted that the order was not served on the first respondent. This represents
an initial procedural requirement for the applicant. Consideration of mala fides cannot
proceed without establishing knowledge of the contents of the court order.
[22] This court was not provided with records of previous court proceedings of
16 November 2023, but was, however, referred to the court o rder dated 24 November
2023, which was handed down a week after the hearing . However, as already
demonstrated, the applicant has not disputed the first respondent’s version that the order
was not served on the applicant nor brought to her attention.
[23] Consequently, the court finds that the applicant has failed to discharge the criminal
evidential burden of proof that the first respondent was aware of the court order and that
evidential burden of proof that the first respondent was aware of the court order and that
her failure to comply with the order was mala fides.
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[24] Both parties applied for punitive costs against each other. I am m indful of the fact
that the applicant had to approach this Co urt to seek compliance w ith the order, thereby
incurring costs. I am equally m indful of the respondent's reasons in opposing same. I am
therefore of the view that the circumstances are such that there should be no costs order
in this application.
[25] In the result, I make the follow ing order:
1 The application is dism issed, w ith no order as to costs.
MSIBI AJ
ACTING JUDGE O F TH E HIGH COURT
MPUMALANGA D IVISION, MBOMB ELA
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Appearances
For the applicant: Adv M.M Boonzaaier
Instructed by: Doyer and Doyer Attorneys, Mbombela.
For the respondent: Adv N. Nortje
Instructed by: Sekgala and Njau Attorneys
Reserved on: 24 July 2025
Delivered on: 11 August 2025