IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 2277/2024
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the interlocutory application between: -
INNOCENTIA MIRACLES PIENAAR First Applicant
MOTLALEPULA SEGAMI Second Applicant
and
JEROME PHENYO RAADT First Respondent
DERICK CORNS Second Respondent
SCARLET SUN 15 (PTY) LTD Third Respondent
BLUE DUST 7 (PTY) LTD Fourth Respondent
THE COMMISSIONER OF COMPANIES AND
INTELLECTUAL PROPERTY COMMISSION Fifth Respondent
In re:
JEROME PHENYO RAADT First Applicant
SARAH KOUS Second Applicant
2
SCARLET SUN 15 (PTY) LTD Third Applicant
BLUE DUST 7 (PTY) LTD Fourth Applicant
and
THOMAS SWARTS First Respondent
HENRY LANGEVELD Second Respondent
LYDIA MODISE Third Respondent
ZINAKILE REUBEN DUBE Fourth Respondent
INNOCENTIA MIRACLES PIENAAR Fifth Respondent
MOTLALEPULA SEGAMI Sixth Respondent
MARGARET SWARTS Seventh Respondent
GLORIA PETERSON Eighth Respondent
EVELINA MOKHENGWANE Ninth Respondent
ALL THE REMAINING MEMBERS OF THE
SYDNEY ON VAAL COMMUNAL PROPERTY
ASSOCIATION Tenth Respondent
MOKUENA ATTORNEYS Eleventh Respondent
THE DIRECTOR: TENURE REFORM
IMPLEMENTATION IN THE PSSC: NC Twelfth Respondent
THE COMMISSIONER OF COMPANIES AND
INTELLECTUAL PROPERTY COMMISSION Thirteenth Respondent
3
Heard: 06 June 2025
Delivered: 25 July 2025
Summary: Interlocutory application. Contempt of court . Failure to comply with
court order. Application for committal for contempt of court. Requirements to be
proved beyond reasonable doubt: (a) existence of order; (b) service of notice; (c)
non-compliance. Evidentiary burden to rebut non -compliance was neither wi lful nor
mala fide. Whether s 18 of the Superior Courts Act, 10 of 2013, suspends the
operation of the order. Dispute of fact.
ORDER
In the result, the following order is made:
1. The respondents are not in contempt of this court’s order of 11 April 2025.
2. The application is dismissed.
3. The applicants are ordered to pay the costs of this application , jointly and
severally, the one paying the other to be absolved, on the scale as between
attorney and client.
JUDGMENT
Mamosebo, J
[1] This interlocutory application was one of the three applications brought on an
urgent basis before me at the end of the unopposed motion court roll. I
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allowed the parties to argue the matter in full and reserved my reasons and
order.
[2] Two crisp issues stood for determination . First, whether this interlocutory
application should be heard as an urgent application as contemplated by the
provisions of Rule 6(12)(a) of the Uniform Rules of Court; and secondly,
whether the first to the fourth respondents are guilty of failing to comply with
the court order granted by Williams J on 11 April 2025 under Case Number
2277/2024 directing them to furnish to the applicants all decisions, reports
and financial statements of the third respondent taken by the board and/or
the respondents in the absence of the applicants from 28 June 2024 until 11
April 2025, within 48 hours of the order.
Urgency
[3] The applicant must persuade the court, in terms of Rule 6(12) of the urgency.
The following conclusion is drawn by Van Logg erenberg in Erasmus 1
pertaining to urgent applications:
‘In other words, urgency (except where a statute provides for inherent
urgency) is determined not by the nature of the claim brought, but by the
circumstances in which the applicant seeks its adjudication. … It is
peremptory that an applicant set out explicitly the circumstances on which he
relies to render the matter urgent and the reason why he claims that he
cannot be afforded substantial relief at a hearing in due course.’
[4] In light of the fact that this application is for contempt of an order of the Court
the Constitutional Court has in Secretary, Judicial Commission of Enquiry
into Allegations of State Capture v Zuma and Others 2 enunciated that it is in
circumstances where the applicants have shown that the contempt is
ongoing where the element of urgency would be satisfied.
[5] On 11 April 2025 Williams J granted the following order in favour of the
applicants:
1 Erasmus Superior Court Practice, Second Edition, Volume 2 at D1 Rule 6-52
2 2021 (5) SA 327 (CC) at paras 31 to 33
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‘1. The applica tion is heard as an urgent application pursuant to the
provisions of Rule 6(12) and Rule 6(11) of the Uniform Rules of Court,
and that the applicants’ non-compliance with the provisions pertaining
to the form and service are hereby condoned.
2. Pending the finalisation of the main application in the above matter, the
following orders are made:
2.1 That the applicants are permitted, allowed, directed and/or
instructed to exercise all applicable duties and rights bestowed
upon directors of a company in terms of the Companies Act 71
of 2008 and the Memorandum of Incorporation of the third
respondent in respect to the third respondent (i .e. Scarlet Sun
15 (Pty) Ltd.)
2.2 That the respondents are prevented from interfering, disrupting,
frustrating and unlawfully preventing the applicants from
exercising the duties and rights bestowed upon them by the
Companies Act 71 of 2008 and the third respondent’s
Memorandum of Incorporation.
2.3 That the first to the fourth respondents are directed, instructed
and ordered to provide the applicants with all the decisions,
reports and financial statements of the third respondent taken in
the applicants’ absence by either the board and/or respondents
individually from 28 June 2024 until 11 April 2025 within 48
hours of the order.
3. Any party opposing this application is to pay the costs of the application
on an attorney and own client scale, the one paying the other to be
absolved.
4. The respondent is to pay costs on party and party scale.’
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[6] The order by Williams J was signed on 22 April 2025. Ms Innocentia Miracles
Pienaar deposed to the founding affidavit in her capacity as a member of the
Executive Committee of Sydney on Vaal Communal Property Association as
well as a director of Scarlet Sun 15 (Pty) Ltd , the positions placed in dispute
by the respondents in the main application . According to her the order was
first served electronically by email on the attorneys of the first to fourth
respondents on 23 April 2025 and thereafter by the sheriff on 23 May 2025.
The applicants requested the first and second respondents for the sitting of
the board o n the same day that the sheriff served the order , which was
denied. The respondents’ attorney, Mr Wiehan de Bruin of the firm Van de
Wall Incorporated, informed them of the reason for the denial in an email
dated 27 May 2025 quoted in relevant part:
‘Your statement “The appeal application does not suspend the court order of
11 April 2025 signed on 22 April 2025” is a direct contradiction of your urgent
application in terms of section 18(3) [of the Sup erior Courts Act, 10 of 2013]
in which you requested the enforcement of the order of 11 April 2025
pending the application for the appeal. As you are aware, your
abovementioned application was removed from the roll with costs when it
was heard on 16 May 2025. In view of the above and in view of the fact that
the appeal application suspended the 11 April 2025 court order, as confirmed
by your section 18(3) application, our clients will not adhere to your request
or proposed meeting.’3
It is pursuant to this response that the applicants brought this application on
an urgent basis claiming that the respondents have refused, neglected
and/or failed to adhere to the court order.
3 18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an application for leave to
appeal or of an appeal, is suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the
operation and execution of a decision that is an interlocutory order not having the effect of a final
judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended
pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied
to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the other party will not suffer irreparable harm
if the court so orders.
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[7] In as far as urgency is concerned, the application was launched on 28 May
2025. T he order was already signed on 22 April 2025 . There is no
explanation in the founding affidavit why the application was not brought
sooner. In a separate earlier interlocutory application brought on 06 May
2025 the applicants have in their founding affidavit made reference to the
non-compliance with the court order by the respondents. It is inexplicable
why the contempt was not dealt with in the earlier interlocutory application. In
addition, they have also dealt with the rights of the directors being
continuously frustrated by the respondents. At this point, it is unclear why the
applicants maintain that they would be denied substantial redress if the
matter is not heard on an urgent basis. Further, they have failed to address
in the papers the irreparable harm that they stand to suffer should the matter
not be heard on an urgent basis. Be that as it may, I have heard argument
fully on the merits notwithstanding those shortcomings.
The contempt of Court allegation
[8] In order for an applicant to succeed in obtaining the relief sought the
following requirements must be met:
(a) the existence of a court order;
(b) service or notice thereof;
(c) non-compliance with the terms of the order; and
(d) wilfulness and mala fides beyond reasonable doubt.
The respondent bears the evidentiary burden in relation to (d) to adduce
evidence rebutting the inference that his non -compliance was not wilful and
mala fide.
[9] Requisites (a) and (b) are common cause ; that the order exists , that it was
served on the respondents and that they are aware of its existence. What is
challenged by the respondents is the ir alleged non -compliance with the
order.
[10] The allegation by the applicants is that the respondents failed to comply with
clause 2.3 of the order of Williams J dated 11 April 2025 which ordered them
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to furnish the applicants with decisions, reports and financial statements
within 48 hours of the order. The question on when the order was brought to
the notice of the contemnor degenerated into sterile and futile debate. The
nit-picking by the parties is disappointing and will burden this judgment
unduly.
[11] In the respondents’ answering affidavit deposed to by their attorney of
record, Mr Wiehan de Bruin, the following is asserted:
11.1 Scarlet Sun 15 (Pty) Ltd has been dormant for the whole period
since the appointment of the applicants as directors. During that
period there was no directors’ meeting to which the applicants could
have been invited. This contention was maintained in the answering
affidavits of the earlier interlocutory applications.
11.2 There were n either board decisions taken in the absence of the
applicants nor reports created or made during that period.
11.3 There were n either any financial statements to be considered or
signed off that the respondents could have provided to the applicants
within 48 hours of the court order.
11.4 In as far as the allegation that the respondents are interfering,
disrupting, frustrating and unlawfully preventing the applicants from
exercising the rights bestowed upon them by the Companies Act is
concerned, relating to wilfulness or mala fide, the respondents
counter that they have filed a Notice of Application for leave to
appeal on 29 April 2025. The applicants launched an application in
terms of s 18(3) of the Superior Courts Act, 10 of 2013, but was
struck off the roll due to lack of urgency. The operation and
execution of the order by Williams J was, in terms of s 18(1 ), was
accordingly suspended on 29 April 2025 as it was the subject of an
application for leave to appeal or of an appeal, pending the decision
of the application or appeal.
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[12] To settle that aspect of the debate is to invoke what the Supreme Court of
Appeal said in TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd and Others4:
‘The defendant referenced s 18(2) of the Superior Courts Act. It does
contemplate that an interlocutory order not having the effect of a final
judgment may be the subject of an appeal. Section 18 regulates the
suspension of decisions pending an appeal. The scheme of s 18 is simply to
allow for different suspension regimes of application to decisions and
interlocutory orders. The provision has nothing to say about when an
interlocutory order might be appealable. Only that if such an order is sought
to be appealed or leave has been given (rightly or wrongly), s 18(2) is the
regime of application to the suspension of the order. Section 18 does not
overturn this Court’s jurisprudence as to when a decision is appealable. Nor
does it enthrone the interests of justice as the overarching principle to decide
when a matter is appealable.’
The SCA went on to say:5
‘…I do affirm, though, that the doctrine of finality must figure as the central
principle of consideration when deciding whether a matter is appealable to
this Court.’
It is my view that order 2.3 of Williams J’s order, directing, instructing and
ordering the first to fourth respondents to provide the applicants with all the
decisions, reports and financial statements of the third respondent from
28 June 2024 to 11 April 2025 within 48 hours is final in effect as espoused
in Zweni.
[13] On the test of proof beyond reasonable doubt t he remarks by t he
Constitutional Court (ConCourt) in Pheko and Others v Ekurhuleni City 6 are
apposite:
4 2023 (5) SA 163 (SCA) para 24; see also Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
5 Ibid at para 30
6 2015 (5) SA 600 (CC) paras 35 and 36
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‘After surveying the remaining case law, international sources and the
arguments of either side, Fakie concluded that this standard for a finding of
contempt where committal is the sanction is not in keeping with constitutional
values and that the standard should rather be beyond a reasonable doubt.
Despite the fact that it is acknowledged that this mechanism (especially
when employed by civil litigants) retains its civil character, the possibility of
imprisonment requires the importation of protections.
These protections are mandated by the Constitution. However, in importing
them we must be cognisant of the context of contempt proceedings: a
respondent in contempt proceedings, Fakie said, is not an 'accused person'
as envisioned by s 35 of the Constitution, and the protections afforded to a
contemnor should not supersede the capacity of a non-state litigant who may
not have the administrative might to establish motive. Therefore the
presumption rightly exists that when the first three elements of the test for
contempt have been established, mala fides and wilfulness are presumed
unless the contemnor is able to lead evidence sufficient to create reasonable
doubt as to their existence. Should the contemnor prove unsuccessful in
discharging this evidential burden, contempt will be established.’
[14] There seems to exist dispute of fact whether those relevant documents they
claim they ought to have been provided with were in fact in existence since
the respondents contend that Scarlet Sun was dormant during the period in
which the records are demanded. Under such circumstances the Plascon-
Evans rule7 becomes applicable. The principle is succinctly dealt with in
Fakie NO v CCII Systems (Pty) Ltd8 in these terms:
‘In the light of the proper approach to deciding factual disputes in motion
proceedings, I should add that, on the particular form of process the parties
committed themselves to in this case, I do not think that it would make any
committed themselves to in this case, I do not think that it would make any
difference had the onus been only proof on a balance of probabilities. The
accepted approach requires that, subject to 'robust' elimination of denials
and 'fictitious' disputes, the Court must decide the matter on the facts stated
7 Plascon-Evans Pants Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 632 (A) at 634E – 635C
8 2006 (4) SA 326 (SCA) para 63
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by the respondent, together with those the applicant avers and the
respondent does not deny.’
[15] Once the applicant has proved that the first three requirements for contempt
have been established, mala fides and wilfulness on the part of the
respondents are presumed. The applicants have, in my view, failed to
establish the third requirement of non -compliance with the order beyond
reasonable doubt. In the circumstances, I can also not draw an inference of
wilfulness or mala fides on the part of the respondents and can therefore not
conclude that the respondents are in contempt of the order. It follows that the
respondents have shown good cause why they should not be held in
contempt.
[16] It was submitted by Mr Knoetze , on behalf of t he respondents, that the
applicants have brought three interlocutory applications based on the same
facts and can be seen as verging on being vexatious litigants. He urged for
an order by the court to mark its displeasure by ordering the applicants to
pay the costs on the scale as between attorney and own client.
[17] The general rule is that costs have to follow the result. See Gauteng
Provincial Legislature v Kilian 9. The Court has a discretion to award costs
which must be exercised judici ally. I do not think that the circumstances
described above can be considered so extraordinary that they warrant an
order of costs on a scale as between attorney and own client against the
applicants. However, the fact that there has been so many urgent
interlocutory applications where the respondents had no other option but to
defend the matter, there is no reason why the respondents must be out of
pocket to do so.
[18] In the result, the following order is made:
1. The respondents are not in contempt of this court’s order of 11 April
2025.
9 2001 (2) SA 68 (SCA) 76G – I
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2. The application is dismissed.
3. The applicants are ordered to pay the costs of this application, jointly
and severally, the one paying the other to be absolved, on the scale
as between attorney and client.
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Obo the Applicants: Adv. J.K. Mongala
On instructions of: Mokuena Attorneys
c/o Mosikare Attorneys
Obo the Respondents: Adv. B. Knoetze SC
On instructions of: Van de Wall Inc