REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE: YES /NO
(2) OF INTEREST TO THE JUDGES : YES /NO
(3) RE V ISED.
D ATE : 03 October 2025 SIGNA TURE .....
In the matter between:
DICKIEL KUSAINDA
And
THE UNIVERSITY OF LIMPOPO
NEHEMIA MAHLO MOKGALONG
KWENAMASHA
JUDGMENT
CASE NO: 11854/2023
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
2
DU PLESSIS AJ:
Introduction:
[1] The Applicant applies for the follow ing relief against the Respondents:
1.1 Declaring the First Respondent, alternatively the First, Second and Third
Respondents to be in contempt of the court order granted by this Co urt
on 7 June 2024; and
1.2 Directing the First Respondent to comp ly w ith the court order granted by
this Court on 7 June 2024.
[2] The First Respondent opposed this application, w hilst the Second and Third
Respondents are abiding the decision of this Court.
[3] The First Respondent also instituted application proceedings in terms of Ru le
30(1 ), w hich has now become academ ic, except for the issue of costs.
Background:
[4] The First Respondent applied for leave to appeal the Order dated 7 June 2024,
wh ich w as denied by the Court a quo.
[5] The First Respondent then applied to the Supreme Court of Appeal for leave to
appeal, w hich suspended the implementation of the Court Order.
3
[6] The First Respondent thereafter withdrew its application for leave to appeal,
which had the effect that the Court Order was no longer suspended. It must be
noted that the Respondents admit that following the First Respondent's
withdrawal of the application for leave to appeal to the S upreme Court of Appeal,
the Order became operative again.1
[7] The Applicant then proceeded to demand that the First Respondent comp ly with
the Co urt Order by:
7.1 Reinstating his registration as a student pending the finalisation of the
evaluation and examination of his doctoral thesis and by providing proof
of such registration by 7 February 2025; and
7.2 By appointing a panel of external assessors to evaluate his doctoral
thesis and providing proof of such appointment by 21 February 2025.2
Issues to be determined:
[8] The issues requiring determination are the following:
8.1 Whether the First Respondent and its functionaries, the Second and
Third Respondents, are in contempt of court for failure to comply w ith
and to implement the Court Order dated 7 June 2024; and
8.2 Whether the Applicant should be awarded punitive costs due to the
conduct of the Respondents.
1 AA , page 80, para 26.
2 FA , page 17, para 36 read with annexure DKCCS, page 52; and
AA , page 80, para 26 (no denial).
4
Legal Framework:
Contempt of Court:
The Constitutional Court confirmed that the rule of law is a foundational value of
the Constitution when it was considering the issue of contempt of court in the
matter of Pheko and Others v Ekurhuleni City. It stated the following:
"The rule of law, a foundational value of the Constitution, requires that the dignity
and authority of the courts be upheld. This is crucial, as the capacity of the courts
to carry out their functions depends upon it. As the Consitution commands ,
orders and decisions issued by a court bind all persons to whom and organs of
state to which they apply, and no person or organ of state may interfere, in any
manner, with the functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our court impotent and judicial
authority a mere mockery. The effectiveness of court orders or decisions is
substantially determined by the assurance that they will be enforced. "3
[9] The Constitutional Court further held in the matter of Pheko and Others v
Ekurhuleni City that:
"Wilful disobedience of an order made in civil proceedings is both contemptuous
and a criminal offence. The object of contempt proceedings is to impose a
penalty that will vindicate the court's honour, consequent upon the disregard of
3 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 CC ("Pheko II") at [1].
5
its previous order, as well as to compel performance in accordance with the
previous order."4
[10] In the matter of Matjhabeng Local Municipality v. Eskom Holdings Ltd, the
Constitutional Court further explained the purpose of a finding of contempt as
follows:
"The purpose of a finding of contempt is to protect the found of justice by
preventing unlawful disdain for judicial authority. Discernibly, continual non
compliance with court orders imperils judicial authority. "5
The elements of contempt:
[11] There are four elements that must be present in order for the Court to find that a
person or entity is in contempt. These four elements are the following:
12.1 the existence of a court order;
12.2 the contemnor must be aware of the order;
12.3 there must have been non-compliance with the order; and
12.4 the non-compliance must have been wilful or ma/a tide. 6
[12] When a declaration of contempt is sought (not committal), these elements must
be proved on a balance of probabilities.7 The onus is initially on the Applicant,
4 Pheko II, Ibid, at [28].
5 Matjhabeng Local Municipality v. Eskom Holdings Ltd 2018 (1) SA 1 (CC) para 48.
6 Pheko II, Ibid, at [32]; Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at [12], [41] and
[42(d)] ("Fakie").
7 Pheko II, Ibid, at [37]; Fakie, Ibid, at [16], [19], [41] and [42(e)].
6
who needs to prove the existence of the order, that the Respondent had notice
of the order and also non-compliance with the Court order.
[13] Thereafter the onus shifts to the Respondent who must prove, on a balance of
probabilities that non-compliance with the order was not wilful or ma/a fide.8
The Existence of the Order:
[14] It is common cause that the Court handed down a judgment on 7 June 2024
which contained the Order.
The Respondents must be aware of the order:
[15] The Un iversity (First Respo ndent), Vice Chancellor (Second Responde nt) and
the Registrar (Third Respondent) were all made aware of the Order and its
contents. The Respondents admitted thereto.
[16] It is also evident from the fact that the Respondents applied to the Supreme
Co urt of Appeal against the Order.
Non-compliance with the order:
8 Secretary of the Judicial Commission of Enquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v. Zuma and Others 2021 (5) SA 327 (CC) at [41]
and [42]; Fakie, Ibid, at [41] and [42]; MEC, Departm ent of We lfare, Eastern Cape v Kate 2006 (4)
SA478 (SCA) at [30]; Kenton-on-sea Ratepayers Association and others v Ndlambe Local Mun icipality
and Others 2017 (2) SA 86 (ECG) at [47].
7
[17] Paragraph 3 of the O rder directs the First Respondent to take a decision on the
App licant's review application. The First Respondent argued that it has not failed
to comply because it has "started the process of obeying" the Order. 9 It must be
noted that the Order is very clear and it does not make any provision for a
"process".
[18] The Order provides a 30-day period w ithin wh ich the so-called "process" needed
to be comp leted. The time for comp liance w ith the Order lapsed more than a
year ago, yet the First Respondent is still "in the process of obeying" the Order,
but there has been no actual compliance by the First Respondent.
[19] Paragraph 4 of the Order directs the First Respondent as follows: "The
Respondent is herewith directed to re-instate the Applicant's registration as a
student with the First Respondent pending the finalisation of the evaluation and
examination of his doctoral thesis."
[20] The Order is quite clear in that the re-instatement of the Applicant's registration
as a student and the evaluation and exam ination of his doctoral thesis had to be
complied with immediately.
[21] The First Respondent argued before this Court that it had to comply w ith
paragraph 3 of the Order first and only after it has finalised its compliance, would
it be possible for the First Respondent to comply with paragraph 4 of the Order.
[22] This Court does not agree w ith that argument. Parties do not get to pick and
choose wh ich part of court orders they want to comply w ith.
9 AA , page 75, para 4; RA, page 92, paras 15-17.
8
Non-compliance and Contempt of the Second and Third Respondents:
[23] An institution such as the First Respondent can only perform its administrative
and legal acts through the agency of its human officials. The App licant has
argued that the contemptuous conduct whould be attributed not only to the First
Respondent, but also to the Second and Third Responden ts in their capacities
as the most senior functionaries tasked with and responsible for the
administration of the University (First Respondent).
[24] It has been admitted that the Second Respondent, as V ice-Chancellor, is as
contemplated in the Univeristy's governing statute, the University's (First
Respondent's) chief executive and accounting officer who bears ultimate
responsibility for all acts performed in the name of the First Respondent. 10
[25] It has also been admitted that the Third Respondent, as the Reg istrar, and as
contemplated in the University's governing statute, is the First Respondent's
chief compliance officer whose duties include ensuring that the First Respondent
complies with orders of the courts.11
[26] It has further also been admitted that the Second and Third Respondents hold
the responsibility to see to it that the Order is implemented.12
[27] It is on this basis that the Applicant argued that the non-compliance and
contempt of the Court Order mus t not only be attributed to the First Responde nt
but also to the Second and Third Respondents.
The non-compliance must have been wilful or mala tide:
1° FA, page 9, para 11; AA, page 77, para 12.
11 FA, page 9, para 12; AA, page 77, para 12.
12 FA, page 9, para 12; AA , page 77, para 12.
9
[28] As set out above, where a declaration of contempt is sought (and not comm ittal),
an applicant must prove, on a balance of probabilities, the existence of the order,
notice of the order and non-compliance.13
[29] In other words, the standard of proof for the declarator sought in prayer 1 of the
notice of motion and for the directives sough in prayers 2 to 4.1 and 4.2, requires
the Applicant to establish that the Respondents are in contempt of court on a
balance of probabilities, 14 including the prayer for the imposition of a fine on the
First Respo ndent.15
[30] It is only in respect of the committal of the Second and Third Respondents sought
in prayer 4.3 of the Notice of Motion that the standard of proof required is beyond
a reasonable doubt.16
[31] Thereafter the onus shifts to the respondents to prove, on a balance of
probablities, that the non-compliance was not w ilful or ma/a fide.17
[32] In the matter of Fakie N.O v CCII Systems (Pty) Ltd, the Supreme Court of
Appeal explained this evidential burden as follows:
"Once the applicant proves the three requisites (order, service and non
compliance), unless the respondent provides evidence raising a reasonable
13 Fakie, Ibid, at [16], [19], [41) and [42(d)]; Phe ko II, Ibid, at [37].
14 Matjhabeng, Ibid, at [65] and [67].
15 Matjhabeng, Ibid, at [65].
16 Matjhabeng, Ibid, at [67)
17 Fakie, Ibid, at [41 and [42].
10
doubt as to whether non-compliance was wilful and ma/a tide, the requisites of
contempt will have been established.
Should the respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful and ma/a tides, contempt will
have been established beyond reasonable doubt. "18
[33] The Respondents attempt to show a lack of ma/a tides by stating that it acted on
the advice of its legal representatives.
[34] Unfortunately for the Respondents, legal advice given and relied on does not
constitute a defence to a charge of contempt of court, unless they can
demonstrate the absence of w ilfulness or ma/a fides.19
[35] In the matter of Moyo v Old Mutual the Court explained as follows: " ... the
enquiry is not whether the advice was correct or incorrect, but whether the
reliance on it was sufficient to negative an inference of ma/a fides."20
[36] The Respondents simply alleged that legal advice was given to them. No
explanation is offered of what the factual basis was for such advice; what exactly
the legal advice was ; why it was accepted as reasonable and why it was followed
despite the Order being very clear.
18 Fakie, Ibid, at [41 and [42(d)].
19 Municipal Manager, D.R. Tambo Mun icipality and Another v Ndabeni 2023 (4) SA 421 (CC) at [21) -
("Ndaben i").
20 Moyo v Old Mutual Ltd and Others [2022] 3 All SA 795 (GJ) ("Moyo ").
11
[37] There is insufficient evidence before this Court to determine the nature of the
advice received and whether it was reasonable to accept that advice and to
refuse to comp ly with the Co urt Order.
[38] The Respondents have further failed to provide sufficient evidence to establish
a reasonable doubt, even on a balance of probabilities, as to wether the non
compliance was not wilful and ma/a tide and have failed to demonstrate that their
reliance on legal advice was bona tide such to negate their duty to comply with
a clear and binding court order.
[39] On the other hand, the Applicant successfully proved contempt beyond a
reasonable doubt and claiming the relief as set out in the Notice of Motion.
Costs:
[40] The default practice in awarding costs is that costs ordinarily follow the result but
that the issue of costs is in the discretion of the court.21
[41] The Co urt finds that there is no reason for the Applicant to be deprived of his
costs.
[42] Despite the fact that the Court Order of 7 June 2024 declared that the First
Respondent was violating the Applicants rights, the Responde nts deliberately
refused to comply with the said O rder.
21 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at [224], [227] and [228];
Limpopo Legal Solutions v Eskom Ho ldings (Soc) Limited 2017 (12) BCLR 1497 (CC) at [20] ("Eskom ").
12
[43] The Respondents' contemptuous conduct has resulted in the Applicant's rights
continuing to be violated and has caused him further serious prejudice.
[44] In addition to being in contempt of the Court Order dated 7 June 2024, the
Respondents' conduct in applying to the Supreme Court of Appeal for leave to
appeal only to withdraw the application after the dies for filing its replying affidavit
had expired, was not in good faith and seems to have been done purely to obtain
a delay in the implementation of the Order.
[45] The First Respondent further indicated to this Court that its Senate held a
meeting on 25 March 2025 in respect of the Applicant's matter, however the
Respondents have failed to keep the Applicant and his Attorneys appraised of
the situation. It has also not provided the Court with the outcome of the meeting.
[46] The Respondents argued that they invited the Applicant to submit further
documents in anticipation of the meeting of 25 March 2025, which the Applicant
never did. That is not an excuse for non-complaince w ith the Court Order.
[47] This Court does not approve of the conduct of the Respondents and is of the
view that a punitive cost order is appropriate.
[48] In the matter of Biowatch Trust v. Registrar, Genetic Resources and
Others22 it was stated that the State should bear the costs if the challenge to the
constitutionality of a law or of State conduct was 'genuine' and 'non-frivolous'.
[49] The Constitutional Court has unanimously held that where a claim involves
administrative action that conflicts with a requirement imposed by the
22 Biowatch Trust v Registrar, Gene tic Resources and Others 2009 (6) SA 232 (CC) at [22] ("Biowatch").
13
Co nstitution, that constitutes a constitutional matter.23 The matter before Court
involves such a claim and is thus a constitutional matter.
[50] The Applicant's counsel recorded that they are acting on a pro bono basis.
Section 92 of the Legal Practice Act, Act 28 of 2014 provides for the recovery
of legal costs by practitioners who render free legal services. This Court is thus
empowered to make a costs order in favour of the Respondent.
[51] Taking all of the above into consideration as well as the scale of fees to counsel
as contemplated in Un iform Rule 67 A(3)(a), this Court is satisfied that, having
regard to the complexity of the matter, the extent of the record, the importance
that the matter has to the Applicant, that costs to counsel on Scale C is
warranted, such costs to include the costs of two counsel.
Order:
[52] In the result the following order is made:
1. The first respondent's application in terms of Rule 30; of the Uniform
Rules of Court is dismissed.
2. The The first respondent is declared to be in contempt of the court order
granted by this Honourable Court on 7 June 2024.
3. The first respondent is ordered to comp ly w ith the court order granted by
this Honourable Court on 7 June 2024 within 5 (five) days of the date of
this order by:
23 Fraser v Absa Bank Ltd (National D irector of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484
(CC) at [37] - [38].
14
3.1 reinstating the applicant's registration as a student with the first
respondent w ith immediate effect pending the finalisation of the
evaluation and examination of his doctoral thesis; and
3.2 appointing a panel of external assessors to exam ine the
applicant's doctoral thesis.
4. Second and third respondents are directed to provide first respondent
such assistance as may be required to achieve compliance w ith the
order in paragraph 3 above.
5. The second and third respondents are ordered to report back to this
Honourable Court and to the applicant by serving on the applicant and
filing with this Honourable Court w ithin 3 (three) days of the expiry of the
5 (five) day time period contem plated in paragraph 3 above, an affidavit
under oath setting out the steps wh ich each of them has taken on behalf
of the first respondent to comply with the order in paragraph 3 above.
6. The applicant is authorised in the event of non-compliance w ith the
directive in paragraph 3 of this order to approach this Hono urable Co urt
as a matter of urgency on these papers duly supplemented for such
further order as this Court deems meet, including:
6.1 requiring the attendance of the second and / or third
respondent before this Court in person to explain the failure to
comply w ith paragraph 3 above;
15
6.2 directing the first respondent to pay a fine in an amou nt
deemed appropriate by this Honourable Court;
Alternatively to paragraphs 6.1 and 6.2 above,
6.3 Declaring the second and/ or third respondents in contempt of
court and committing the second and / or third respondents to
gaol for a period not exceeding 3 (three) months for contempt
of court.
7. Directing the first respondent to pay the costs of this application on an
attorney and client scale, inclluding the costs of two counsel, such costs
to be paid on scale C of the tariff under rule 69.
APPEARANCES:
FOR THE APPLICANT
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. M Antrobus SC
Adv.lNongogo
INSTRUCTED BY
FOR THE FIRST RESPONDENT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT
16
Webber Wentzel Attorneys
Asmita.thakor@webberwentzel.com
Nkosinathi.thema@webberwentzel.com
Jos. venter@webberwentzel. corn
Adv. VS Notshe SC
Motalane Inc
ntsoanet@mota lanelaw.co.za
info@motalanelaw.co.za
associate1@motalane law.co.za
17 September 2025
03 October 2025