IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 962/2021
Reportable Yes / No
In the matter between:
LUBABALO GUNTU Applicant
and
MINISTER OF POLICE Respondent
JUDGMENT
Cengani-Mbakaza AJ
[1] This is an application to declare the respondent in contempt of court,
pursuant to the court order granted on 18 April 2023 and the second order
granted on 27 November 2023 (the court orders). In terms of paragraph 2 of the
notice of motion, the applicant seeks relief that the Minister of Police be ordered
to comply with the court orders, failing which the applicant be granted leave to
approach the court on the same papers, duly amplified, for an order holding the
respondent in contempt and imposing appropriate sentence.
[2] Although the notice of motion seeks compliance with the court orders, the
affidavits filed and the heads of argument effectively pursue a finding of
contempt of court against the respondent. During oral a rguments, Mr Tsipa, the
applicant’s attorney made it explicitly clear that the relief sought was a finding
of contempt of court against the respondent for failing to comply with the court
orders. The application is opposed for the reasons that will be pres ented during
the course of this judgment.
[3] The court orders that form the basis of this application are couched as
follows:
‘MTHATHA ON THE 18th day of April 2023
IT IS ORDERED THAT:
1. The matter is hereby postponed sine die.
2. The Defendant is directed to file expert reports within 60 days of this order and provide
their names to the Plaintiff within 30 days from the date of this order.
3. The Defendant is to pay Plaintiff’s wasted costs occasioned by the post (sic)
3.1 Attorney and client costs.
3.2 The reserved tri al fee of the Plaintiff’s experts Dr De Bruin, Ms Vilana and
Grootboom
3.3 The travelling and accommodation costs of the Plaintiff’s legal representative and
experts attending today’s trial insofar incurred.’
[4] The second order is not attached in the founding papers filed, however
the parties are ad idem that the order reads as follows:
‘The Defendant is directed to file its experts reports and make a written offer of
settlement to the Plaintiff in respect of the remaining heads of argument on or before 22
January 2024.’
[5] The background facts, as presented in the founding affidavit are as
follows: On 04 Marh 2021, the applicant instituted action proceedings against
the respondent for unlawful arrest, unlawful detention and unlawful shooting by
police. The issues of merits and quantum were separated. The trial commenced
on 08 September 2022 and the court granted judgment on the merits in favour of
the applicant.
[6] Subsequently, the applicant filed expert rep orts and served them on the
Minister of Police’s attorneys of record. Following this, the matter was set down
for consideration of quantum by the trial court. On 18 April 2023, a date upon
which the matter was to be heard, the respondent applied for a pos tponement to
file his own expert report and the matter was postponed for this purpose. An
email was dispatched to the respondent’s attorneys informing them of their
failure to comply with the court orders. No response was received thereafter.
The applicant avers therefore that the respondent is in contempt of court.
[7] In the answering affidavit, the respondent’s attorney avers that the court
order can only be enforceable if it is competent and proper and in accordance
with the legal prescripts. He conten ds that he does not recall an order directing
the respondent to settle the matter, averring that such an order would be
tantamount to forcing the parties to contract. Even if the order was taken, he has
instructions to apply for leave to appeal the judgmen t on the merits and the
applicant is aware of that pending application. Therefore, the issue of settlement
no longer exists due to the pending application for leave to appeal.
[8] Regarding the court order dated 18 April 2025, the respondent’s case is
that the occupational therapist reports were both served and filed to the
applicant’s attorneys on 23 November 2023. The industrial psychologist report
was served to the applicant’s attorneys on 13 March 2023. Furthermore, a joint
minute compiled by the parti es’ orthopaedic surgeons is also available. The
respondent avers therefore that the application amounts to abuse of court
process.
[9] In their submissions, the parties highlighted the principles governing the
contempt of court applications. These principl es are well -settled and must be
applied in the present case. It is trite that the purpose of the contempt of court
order is not to punish litigants but rather to protect the integrity of the judicial
system and the rule of law by preventing unlawful disda in for judicial authority
which is vested in courts. The civil contempt of court carries the hallmarks of
criminal proceedings, warranting proof of elements such as intention and
unlawfulness. In Fakie NO v CCI Systems (Pty) Ltd 1 (Fakie), a case that I was
referred to by Ms Da Silva SC appearing on behalf of the respondent, the court
stated:
‘[6] It is a crime to unlawfully and intentionally disobey a court order. This type of
contempt of court is part of a broader offence, which can take many forms, but the
essence of which lies in violating the dignity, repute or authority of the court. The
offence has in general terms received a constitutional stamp approval’ since the rule of
law- a founding value of the Constitution - ‘requires that dig nity and authority of the
courts, as well as their capacity to carry out their functions, should always be
maintained.’ [footnoted omitted].
[10] This position was reaffirmed by the Constitutional Court (CC) in
Matjhabeng Local Municipality v Eskom Holdin gs Limited ; Mkhonto v
Compensation Solutions (Pty ) Ltd2(Matjhabeng), where it was held:
[50] The crime of contempt of court is said to be a ‘blunt instrument’. Because of this,
“[w]ilful disobedience of an order made in civil proceedings is both contem ptuous and
a criminal offence”. Simply put, all contempt of court, even civil contempt , may be
punishable as a crime. The clarification is important because it dispels any notion that
the distinction between civil and criminal contempt of court is that th e latter is a crime
and the former is not”.
1 [2006] ZASCA 52; 2006 (4) SA 326 (SCA).
2 2018(1) SA 1 CC.
[51] The Full Court in Burchell elucidates the criminal and civil features that can be
intertwined in contempt proceedings and serves as an example of how the distinction
can exist. In that case Froneman J (as he then was) confirmed that committal for civil
contempt remains a form of a crime under the Constitution, but also re-affirmed its pure
civil character…’[footnotes omitted]
[11] Although there are divergent views regarding the standard of proof that is
applicable in civil contempt proceedings, the CC in Matjhabeng 3 opined that
the standard of proof in civil proceedings is applied in accordance with the
purpose sought to be achieved. Notably, in this instance the test for the
contempt of court requires proof beyond reasonable doubt. This is so because
the civil contempt remedies of a committal in the present matter have material
consequences of an individual’s freedom and security of the person (the
Minister of Police).
[12] The issue is whether the essential elements of contempt were established
herein. These elements were eloque ntly put in Fakie4 and reaffirmed by the CC
in Matjhabeng5 as follows:
(a) The existence of the court order;
(b) the order must be duly served on or brought to the notice of, the alleged
contemnor;
(c) there must be non-compliance with the order; and
( d) the non-compliance must be wilful and mala fide
[13] The existence of court order dated 18 April 2023 is not a contentious
issue rather, the dispute revolves around compliance. The respondent’s
averments in the founding affidavit appear to be admitted in the applicant’s
3 Matjhabeng at para 67.
4 Fn 1 above.
5 Fn 2 above.
affidavit, where it is acknowledged that the order was complied with, albeit late.
Specifically, the expert reports were filed on 13 March 2024 instead of the
directed 60 day- period which was due to expire on 07 March 2024. Even if the
late filing is accepted, it cannot be said there was non compliance of the court
order , as the reports were filed within a reasonable time. Furthermore, the filing
of the expert reports on 23 November 2023 demonstrates the respondent’s clear
intention to file the expert report. It is worth noting that the intention was
clearly established way before the court order was issued.
[14] The contentious issue regarding the second court order which is attached
to the replying affidavit hinges on its specific f raming. It is well -established
that court orders must be clear and unambiguous to ensure effective compliance
and avoid disputes.
[15] I agree with the respondent’s counsel that a court order directing the
parties to settle is tantamount to ordering the parties to contract. This raises
questions about enforceability and clarity of such an order. Considering the fact
that the court order d ated 18 April 2023 was complied with, there is no basis to
conclude that there was a deliberate disregard of that particular court order.
Similarly, the non -compliance with the second court order due to its
enforceability issue, cannot be equated with mala fides or wilfulness to
disregarding the court order.
[16] The final issue concerns the service of the court orders in question. A
crucial element of contempt of court is that the court order must be duly served
on or brought to the attention of the allege d contemnor. In the matter under
consideration, the applicant’s attorney held a strong view that since the
respondent’s attorney of record was present in court when the orders were
issued, that should suffice to meet the service requirement.
[17] This proposition is misconceived and lacks support from the fundamental
established legal standards. It is well -established that any party against whom a
contempt finding is sought must be given proper personal notice and an
opportunity to respond thereto. To convict anyone for contempt of court, it must
be proved that the alleged contemnor was personally aware of the court order.6
[18] The legal principle is that for conduct to constitute contempt, there must
be an intention to defeat the course of justice. The applicant has failed to make a
proper case for the relief sought.
Order
[19] In the result I make the following order:
1. The application is dismissed.
2. The applicant shall pay costs Scale ‘A’ as contemplated under Rule
67A read with Rule 69 of the Uniform Rules of Court. The costs shall
include the costs of two counsel so employed.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
6 See Setshedi v Ndebele and Another [2015] JOL 33120 (LC), also Diluculo Properties (Pty) Ltd v City of
Johannesburg and Another in re: Diluculo Properties (Pty) Ltd v City of Johannesburg (2021/27206,
5576/2018) [2022] ZAGOJHC 803 (18 October 2022).
APPEARANCES:
Counsel for the Plaintiff : Adv Da Silva SC with Adv S Mzileni
Instructed by : Mr A Ludidi
Mthatha
Counsel for the Defendants : Mr Y Tsipa
Y TSIPA ATTORNEYS
Mthatha
Date Heard : 21 August 2025
Date Delivered : 23 September 2025