2
WHO INTENDS OCCUPYING A NEW
RESIDENTIAL/BUSINESS SITE
UNLAWFULLY )
ORDER
1. The application for leave to appeal is dismissed.
2. No order as to costs.
JUDGMENT
DU PLESSIS AJ
Introduction
[1] This is an application brought by the Mpheleng Communal Property Association
for leave to appeal against the judgment delivered by this Court on 3 June 2025, in
which the Applicant’s contempt of court application was dismissed.1
[2] The application for leave is limited to Prayer 1, namely the finding that the First,
Third and Fourth Respondents were not in contempt of the Court’s order of 29 April
2024. It is important to note that the Notice of Motion only sought an order of contempt
related to the 29 April 2024 order of Ncube J, and not any other order by this court.
[3] The grounds of appeal, as outlined in the notice of application, allege
misdirection both in law and in fact. In particular, the Applicant argues that I erred in
finding:
a. that the 29 April 2024 court order did not bind the First, Third and Fourth
Respondents;
1 Mpheleng Communal Property Association v Kgoshigadi Mathebe of Bantwane Traditional Community and
Others (LCC03/2021B) [2025] ZALCC 24.
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b. that the non-citation of those parties in that order constituted a
“preliminary hurdle” to a finding of contempt;
c. and that the evidence fell short of establishing mala fide non-compliance.
[4] Having considered the application and the opposing submissions, I am not
persuaded that the appeal has reasonable prospects of success as required by section
17(1)(a)(i) of the Superior Courts Act, 2 which provides that leave to appeal may only
be granted if the judge is of the opinion that the appeal would have a reasonable
prospect of success, or there is some other compelling reason why the appeal should
be heard. I say so for the following reasons.
[5] It is trite that contempt of court requires proof of three elements:
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a. That a court order was granted against the alleged contemnor;
b. That the alleged contemnor had knowledge of that order;
c. That the alleged contemnor failed to comply with the order.
[6] If those elements are established, a presumption of wilfulness and mala fides
arises, which the respondent must rebut. It is a criminal standard of proof, beyond
reasonable doubt.
4
[7] Critically, the first element is foundational: unless a court order binds the
respondents, there can be no contempt, regardless of the conduct that follows.
[8] As set out in my judgment, none of the First, Third or Fourth Respondents was
cited in the 29 April 2024 interdict that the contempt application referred to. There was
no application for joinder or substitution, despite leadership changes, including the
death of the initially cited traditional leader. In the interdict application, the parties were
cited in both their official and their personal capacities. This creates some problems
for the applicants in the contempt application, for reasons discussed in my judgment.
2 10 of 2013.
3 Secretary, Judicial Commission of Inquiry v Zuma 2021 (5) SA 327 (CC) para 38; Fakie NO v CCII Systems (Pty)
Ltd 2006 (4) SA 326 (SCA) para 42.
Ltd 2006 (4) SA 326 (SCA) para 42.
4 Meadow Glen Home Owners Association v City of Tshwane Metropolitan Municipality [2014] ZASCA 209 para
19.
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[9] While the Applicant urged the Court to treat the new office bearers as
successors bound by the prior order, it remains a principle of law that only parties to
whom an order applies can be held in contempt of it, especially when what is asked
(prayer 3 of the notice of motion) is committa l. The applicant's argument that it is the
conduct that is prohibited, regardless of the citation, cannot hold, as one cannot expect
a person to comply with a court order to which they are not cited. A defective
application cannot be cured with an appeal.
[10] This does not mean that the applicant is without recourse. Rule 15 of the Land
Claims Court Rules outlines a procedure for substituting parties when an original party
ceases to exist or act, such as in cases of death or succession by another statutory
body. No application for substitution under Rule 15 was submitted to this Court. The
lack of such procedural steps supports the conclusion that the Respondents in
question cannot be held to the obligations of the original order.
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[11] As to Mr Aphane, the Fourth Respondent, he was not cited in the interdict, nor
does the phrase "unknown persons" appear in that order. The order referred to
"unlawful occupiers," but whether he falls within that description depends on whether
his occupation was unlawful. By virtue of him buying the stand, his occupation cannot
be said to be prima facie unlawful. This was fully traversed in the judgment. Absent
unlawfulness, he is not bound by the court order.
[12] It needs to be emphasised that merely being aware of the order is not enough
– there needs to be a binding obligation to comply with the court order. Courts must
exercise restraint in matters with criminal consequences and cannot imply obligations
into a judgment that do not explicitly appear on the face of the order.
[13] Even if I am wrong and the respondents are bound, the evidence did not
establish wilfulness or bad faith, for reasons set out in the judgment. The respondents
establish wilfulness or bad faith, for reasons set out in the judgment. The respondents
5 See in general Meadow Glen Home Owners Association v City of Tshwane Metropolitan Municipality [2014]
ZASCA 209 for contempt requirements against officials, which is analogous to the respodents' position in this case.
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(mistakenly) believed they were engaging in routine registration following a private
transaction, not a prohibited allocation.
[14] That being said, the judgment clarified the position regarding allocation and
made clear what allocation involves, which could have implications for the future
conduct of the parties.
[15] None of the Applicant’s grounds raises an arguable point of law or
demonstrates a reasonable prospect that another court would come to a different
conclusion. Nor have any compelling reasons been shown that would justify the
hearing of an appeal.
Order
[16] Accordingly, the following order is made:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
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W J d u P l e s s i s
Acting Judge of the Land Court
Date of hearing:
25 July 2025
Date of judgment:
29 July 2025
For the Applicant:
Mr KK Kekana instructed by G
Maswanganye Attorneys
For the First to Third Respondents: Mr Mathebe instructed by M Wentzel Inc
For the Fourth Respondent:
KMC attorneys