IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
CASE NO. 2025-183503
In the matter between:
DISABILITY ECONOMIC EMPOWERMENT TRUST Applicant
and
INDEPENDENT DEVELOPMENT TRUST First respondent
CARMEN-JOY ABRAHAMS Second respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an application for an order declaring the respondents to be in contempt
of court in relation to Appels AJ’s finding that a Service Level Agreement (SLA)
between the parties was valid and enforceable. The applicant also seeks an order
directing the respondents to take certain steps to give effect to the above finding.
Applicant’s case
[2] The applicant’s Chief Executive Officer, Mr Thabiso Phetuka, stated that the
applicant is a registered non -profit organization (NPO). It conducts its affairs through
its trustees and focuses on the upliftment and empowerment of persons with
disabilities. The first respondent is a state -owned entity and a programme
implementation agency, listed under Schedule 2 of the Public Finance Management
Act 1 of 1999 (PFMA). The second respondent is its Acting Chief Executive Officer.
[3] Mr Phetuka explained that the Department of Public Works and Infrastructure
(DPWI) administers the Expanded Public Works Programme (EPWP), which was
designed to create work opportunities for the unemployed and to facilitate community
development projects. The DPWI appointed the first respondent as the implementing
agent for a component of the EPWP, viz the Non -State Sector (NSS) programme. In
that regard, the efficacy of the programme depended on partnerships with various
NPOs such as the applicant to create and manage work opportunities, using public
funds administered by the first respondent.
[4] On 5 May 2024, the first respondent advertised a tender for participation by
NPOs in the NSS programme for the 2024/2025 and 2025/2026 fina ncial years. The
applicant submitted a bid, which resulted in its appointment. The parties concluded
an SLA that took effect on 31 July 2024; it remains in force until 31 March 2026. In
terms thereof, the applicant is required to create and manage work opp ortunities for
persons with disabilities in alignment with the objectives of the EPWP . The SLA
makes provision for the deployment of 100 participants to four different projects
operated by the applicant in and around East London. They are required to offer their
services in exchange for a monthly stipend, funded by the first respondent.
[5] Mr Phetuka alleged that the parties successfully conducted their respective
obligations during the 2024/2025 financial year, but the situation changed after that.
obligations during the 2024/2025 financial year, but the situation changed after that.
On 8 April 2025, the first respondent requested the applicant to furnish it with certain
compliance documentation, including a current NPO registration certificate or letter
of good standing from the Department of Social Development (DSD). This was done
to determi ne whether the applicant remained eligible for participation in the NSS
programme during the 2025/2026 financial year. It duly complied with the request.
Nothing more was heard from the first respondent until 30 June 2025, when it
informed the applicant that it had terminated the SLA for the 2025/2026 financial year
for lack of good standing with the DSD. This came as a surprise to the applicant,
said Mr Phetuka, because its registration status as an NPO was unchanged. On 1
July 2025, the applicant challeng ed the termination of the SLA, prompting the first
respondent to reverse its decision. On 2 July 2025, however, the first respondent’s
Management Bid Adjudication Committee (MBAC) approved a list of NPOs for the
allocation of EPWP funds in relation to the 2025/2026 financial year. The applicant
was not included. The reason given was that it had failed to comply with the
provisions of the Non-Profit Organizations Act 71 of 1997 (NPO Act). Despite a flurry
of communication between the parties during the follo wing weeks, the first
respondent confirmed, on 23 July 2025, that the SLA had indeed been terminated
and that the applicant was excluded from participation in the NSS programme for the
2025/2026 financial year.
[6] Consequently, the applicant instituted urge nt legal proceedings. It sought,
inter alia, an order declaring that the SLA was valid and enforceable, and directing
the first respondent to carry out its obligations by reinstating the applicant as a
participant. Appels AJ handed down an order in favour of the applicant on 2
September 2025. The first respondent has not noted an appeal.
[7] On 3 September 2025, the applicant’s attorneys sent a letter to the first
respondent’s attorneys, insisting on compliance with the order. The latter responded
on 19 Septem ber 2025, disputing the applicant’s interpretation and pointing out that
the first respondent was not aware of any remaining obligations. They also invited
the applicant to indicate why the SLA should not be terminated under clause 6.1.
Even if there were remaining obligations, said the first respondent, it would need to
secure extra funding from the DPWI for the applicant’s further participation. To this,
secure extra funding from the DPWI for the applicant’s further participation. To this,
the applicant’s attorneys sent a letter on 26 September 2025, demanding
reinstatement and the allocati on of funds for disbursement in accordance with the
programme. The first respondent did not reply.
[8] The present application was brought on an urgent basis. Mr Phetuka averred
that the SLA, as a fixed term contract, will lapse on 31 March 2026; any delay wo uld
erode its remaining value. Furthermore, the 100 disabled beneficiaries deployed by
the applicant to various projects have not received stipends since 1 April 2025, which
was when the 2025/2026 financial year commenced. They depended on the
programme fo r their basic needs, as well as a sense of dignity and worth. The
applicant was unable to support the beneficiaries on its own.
Respondents’ case
[9] A senior manager in the first respondent’s Legal Services Unit, Mr Tshepo
Rapetswa, admitted the existence o f the order and its proper service. He argued,
however, that the applicant had misinterpreted it. Firstly, there was no need for the
first respondent to confirm that the SLA remained extant. Secondly, the provisions
thereof made it clear that the allocatio n of work opportunities was limited to the
2024/2025 financial year. Nevertheless, the applicant now sought relief that was
never contemplated in the main application and which unduly interfered with the
budgetary powers of the DPWI. Thirdly, the applicant incorrectly relied on paragraph
58 of Appels AJ’s judgment to claim relief not supported by the order.
[10] Mr Rapetswa went on to say that the first respondent had requested the
applicant to demonstrate proof of its good standing with the DSD by no later than 11
April 2025. The applicant failed to do so. This resulted in the MBAC’s decision on 2
July 2025 and the continuation of the NSS programme during the 2025/2026
financial year without the applicant. It only succeeded in demonstrating compliance
by 1 August 2025, well after the period prescribed in terms of section 18 (1) of the
NPO Act. Consequently, said Mr Rapetswa, the court in the main application had
misdirected itself, both factually and legally, in finding that the first respondent had
incorrectly relied on impossibility of performance under the SLA. Its non -allocation of
budget for the applicant’s further participation did not mean that the impossibility had
been self -created. He noted further, however, that the court had not expressly
been self -created. He noted further, however, that the court had not expressly
directed the first respondent to allocate the necessary budget; there was nothing in
the order to that effect.
[11] In any event, contended Mr Rapetswa, the first respondent’s letter of 19
September 2025 indicated that any non -compliance was neither wilful nor ma la fide.
It simply reflected the first respondent’s honest belief that there were no remaining
obligations under the SLA. There was also no basis for the applicant’s having joined
the second respondent in her personal capacity and for having sought the imp osition
of criminal sanctions against her.
In reply
[12] The applicant argued, in reply, that the first respondent was attempting to
relitigate the case. The order made by Appels AJ was final and binding and its effect
was that the first respondent was requir ed to perform its obligations under the SLA.
In that regard, 100 work opportunities were allocated to the applicant over the full
period of the 2024/2025 and 2025/2026 financial years.
Issues to be decided
[13] The first respondent never challenged the urgen cy of the application.
Considering the vulnerability of the beneficiaries involved, whose dependency on the
programme was never disputed, the alacrity with which the proceedings were
instituted is understandable. The remaining duration of the SLA must be c onsidered,
too. Overall, the court is satisfied that the applicant has sufficiently set out the
circumstances that render the matter urgent and why the applicant would not obtain
substantial redress in due course. The respondents have also not complained o f any
prejudice caused by the curtailed timeframes imposed upon them.
[14] The key issue to be decided is whether the respondents have failed to comply
with the order of the court in the main application. If so, then wilfulness and mala
fides must be investig ated as explained further below; if not, then that is the end of
the matter. A brief description of the relevant principles follows.
Legal framework
[15] The test for deciding whether a party is in contempt of court is well known. In
Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma
and Others,1 the Constitutional Court confirmed that an applicant must demonstrate
that: (a) an order was granted against the alleged contemnor; (b) the alleged
contemnor was served with the order o r had knowledge of it; and (c) the alleged
contemnor failed to comply with the order. 2 The court went on to say that once the
above elements had been established, wilfulness and mala fides were presumed.
The respondent bore an evidential burden to establish reasonable doubt; if he or she
failed to discharge the burden, then contempt was established.3
[16] At the heart of the present matter is the interpretation to be given to the
judgment handed down by Appels AJ in the main application. The principles in th at
regard are trite. The following extract from Herbstein and Van Winsen is helpful:4
‘The basic rules for interpreting the judgment or order of a court are no different from those
applicable to the construction of documents. The court’s intention has to be ascertained
primarily from the language of the judgment or order as construed according to the usual
well-known rules. Where the court order records an agreement of settlement, the basic
principles of the interpretation of contracts need also to be app lied to ascertain the meaning
of the agreement.5 The judgment or order and the court’s reasons for giving it must be read
as a whole in order to ascertain its intention. If on such a reading the meaning of the
judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary, qualify or supplement it. But if any uncertainty in meaning emerges, the
extrinsic circumstances surrounding or leading up to the court’s grant of the judgment or
order may be investigated and taken into account in order to clarify it. 6 The rule that no
order may be investigated and taken into account in order to clarify it. 6 The rule that no
evidence is admissible to contradict, amend or add to an order which is clear and
1 2021 (5) SA 327 (CC).
2 Para 37. The test was set out by the Supreme Court of Appeal in Fakie NO v CCII Systems (Pty) Ltd 2006
(4) SA 326 (SCA), para 22; it was confirmed by the Constitutional Court in Pheko and Others v Ekurhuleni
City 2015 (5) SA 600 (CC) (‘Pheko II’), para 32.
3 Ibid.
4 Andries Cilliers, Cheryl Loots, and Hendrik Nel SC Herbstein and Van Winsen: Civil Pra ctice of the High
Courts and the Supreme Court of Appeal of South Africa 5 ed (2009), at ch35-p937.
5 Englebrecht NNO v Senwes Ltd 2007 (3) SA 29 (SCA), at 32 – 33.
6 Ibid.
unambiguous is a rule of law, not merely a rule of evidence that can be waived by the
parties.7’
[17] Of immediate relevance is the interpretation to be given t o the order, as this
will determine whether the respondents have failed to comply. The commentary in
Herbstein and Van Winsen is of further assistance:8
‘The order with which a judgment concludes has a special function: it is the executive part of
the judgment that defines what the court requires to be done or not done. While it may be
said that the order must be read as part of the entire judgment and not as a separate
document, the court’s directions must be found in the order and nowhere else. Thus, if the
meaning of an order is clear and unambiguous, it is decisive and cannot be restricted or
extended by anything else stated in the judgment.9’
[18] The above principles constitute the basic legal framework within which the
present matter must be decided. Th ey are applied to the facts in the discussion that
follows but not before the judgment in the main application is considered more
closely.
Judgment in the main application
[19] As a point of departure, the court recognized that the applicant sought, on an
urgent basis, a declarator to the effect that the SLA was valid and enforceable.
Furthermore, the applicant sought an order for specific performance. After
considering the relevant provisions of the SLA and the NPO Act, the court found that
there was no merit in the first respondent’s assertion that the applicant had breached
the agreement. Even if there had been a breach, then the first respondent had not
complied with the cancellation procedure. Consequently, said Appels AJ, the
applicant was entitled to the declarator sought.
7 Postmasburg Motors (Edms) Bpk v Peens 1970 (2) SA 35 (NC), at 39.
8 Cilliers et al Herbstein and Van Winsen op cit.
9 Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A), at 716B – C.
[20] The court went on to address the first respondent’s argument regarding the
legal effect of the MBAC’s decision. Appels AJ held that it was unnecessary for the
applicant to apply for the setting aside of the decision before attempting to enforce its
rights under the SLA.
[21] It was the first respondent’s remaining argument, however, that seems to
have sowed the seeds of controversy in the present matter. The contention was
made that an order for specific performance would not be competent a nd would be
impossible to execute. This was because the MBAC’s decision had already been
implemented. The EPWP funds for the 2025/2026 financial year had been allocated
to other NPOs who were participating in the NSS programme; no budget remained
for the applicant. Appels AJ remarked as follows at paragraph 58:
‘The fact that the respondent has not allocated a budget for the applicant’s participation in
the programme for the 2025/2026 financial year does not mean that specific performance is
not a competent remedy. In any event, a party may not rely on the impossibility of
performance if the impossibility is self -created. In this regard, the following was held in
Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal:10
“This brings me to the a ppellant’s defence of supervening impossibility of performance. As a general
rule impossibility of performance brought about by vis major or casus fortuitus will excuse
performance of a contract. But it will not always do so. In each case it is necessary ‘to look to the
nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the
impossibility invoked by the defend ant, to see whether the general rule ought, in the particular
circumstances of the case, to be applied’. The rule will not avail a defendant if the impossibility is self -
created; nor will it avail the defendant if the impossibility is due to his or her fau lt. Save possibly in
circumstances where a plaintiff seeks specific performance, the onus of proving the impossibility will
lie upon the defendant.”11’
[22] The court proceeded further at paragraph 59:
‘In this matter, the respondent’s alleged inability to per form is self-created and resulted from
its own actions. The respondent made a deliberate decision to exclude the applicant from
the list of approved NPOs, even though there has been no breach of the SLA and even
though the respondent did not comply with th e provisions of the cancellation clause.
10 2008 (4) SA 111 (SCA).
11 Para 28, footnotes omitted.
Therefore, it is not permitted to rely on an alleged impossibility of performance when such
impossibility is due to its own fault.’
[23] Appels AJ concluded that the applicant was indeed entitled to a declaration
that the SLA was valid and enforceable, and that the first respondent was obliged to
comply with its obligations. Whether the respondents have failed to do so forms the
subject of the present matter.
Discussion
[24] It is important to note, at the outset, that the order did no more than direct the
first respondent to perform its obligations. Appels AJ did not order it to reinstate the
applicant as a participant in the NSS programme, allocate work opportunities for the
2025/2026 financial year, or release funding, as sought by the applicant in the
present matter in addition to a declaration of contempt. The relevant portion of the
order states as follows:
‘(1) . . .
(2) It is declared that the service level agreement signed on behalf of the applicant and
the respondent on 22 August 2024 and 3 September 2024 respectively, remains valid
and enforceable.
(3) The respondent is directed to perform its obligations in terms of the service level
agreement referred to in paragraph [2] of this order.
(4) . . .’
[25] Several clauses of the SLA are pertinent. In this regard, clause 2.1 records
that:
‘The IDT [ie the first respondent] hereby appoints DISABILITY ECONOMIC
EMPOWERMENT TRUST [ie the applicant] to support the Non -State Se ctor’s NPO
Programme in the creation of work opportunities as per the EPWP Phase 5 targets and as
envisaged in clause 8.1 of this Agreement.’
[26] Work opportunities are defined as the paid work created under the
programme. The meaning of the term, ‘EPWP Phase 5 targets’, however, is critical
for the determination of the matter. It is defined as follows:
‘the creation of work opportunities in year (2024/2025) by providing incentives to non -state
sector organizations, against targets agreed in the main Agreement, and as maybe amended
through due processes as defined in the main Agreement’.12
[27] At the commencement of the SLA, the parties envisaged the targets as those
limited to the 2024/2025 financial year. They made provision for the possible
amendment of targets , but only in accordance with the main agreement that had
been concluded between the DPWI and the first respondent. In that regard, the latter
was required to manage the implementation of the NSS programme as a component
of the EPWP , using NPOs such as the applicant to create work opportunities for the
unemployed. The above interpretation is supported by clause 8.1:
‘For the 2024/2025 financial year, the SERVICE PROVIDER [ie a registered NPO such as
the applicant] shall be paid an amount of R 122 (one hundred and twenty-two rands) per day
per work opportunity created for ordinary participants for 94 days from August 2024 to 28
February 2025 and R 125 (one hundred and twenty-five rands) per day for 14 days in March
2025; R 139 (one hundred and thirty -nine rands) per day for supervisors / GBV participants
for 94 days from August 2024 to 28 February 2025 and R 149 (one hundred and forty -nine
rands) for 14 days in March 2025. A total of 100 (96 ordinary participants and 4 supervisors)
work opportunities, for a person working 108 days and in accordance with the allocated
budget, will be created at a total wage cost of R 1 329 536.’13
[28] Clause 8.2 sets out the non -wage and administration costs. Clause 8.3
indicates that the tot al contract value is R 1 465 282 ‘for [the] 2024/2025 financial
indicates that the tot al contract value is R 1 465 282 ‘for [the] 2024/2025 financial
year’ (emphasis added). Other clauses that are relevant include: clause 13.1, which
indicates that the SLA comprises the whole agreement between the parties; clause
13.2, which stipulates that no addition to or variation of any clause will be of any
force or effect unless placed in writing and signed; and clause 16.1, which records
12 Emphasis added.
13 Sic, emphasis added.
that the parties agree that the existence of the SLA is contingent upon the
subsistence of the main agreement and the continued need for the services in
question.
[29] The duration of the SLA is indeed from 31 July 2024 until 31 March 2026, as
the applicant has repeatedly emphasised. It is, nevertheless, abundantly clear that
the parties envisaged, initially at least, that the applicant’s services were restricted to
the 2024/2025 financial year in alignment with the EPWP 5 targets. An extension
thereof to cover the 2025/2026 financial year was certainly possible, but not before
the DPWI and the first respondent h ad first amended the targets in accordance with
the main agreement, after which the parties to the SLA would have been required to
complete and sign an addendum.
[30] Overall, there is no obligation on the part of the first respondent to include the
applicant as a participant in the NSS programme for the 2025/2026 financial year. It
simply does not arise from a plain reading of the SLA. It cannot be said that the first
respondent has failed to comply with its obligations.
Relief and order
[31] The court in the mai n application was critical of the MBAC’s decision to
exclude the applicant. This was because it had been based on a non -existent breach
and the first respondent’s failure to adhere to the cancellation procedure set out in
the SLA. In that regard, Appels AJ held, with reference to Snow Crystal, that the first
respondent could not contend that an order for specific performance would be
incompetent and impossible to execute when such impossibility was self -created or
due to its own fault. The court did not fin d, however, that the first respondent was
contractually bound to have included the applicant as a participant. That was never
an issue.
[32] There is, in the end, no basis upon which to hold that the first respondent
failed to comply with the order made by App els AJ. The commentary in Herbstein
and Van Winsen indicates that the court’s directions must be found in the order and
nowhere else. If Appels AJ’s order can be said to be unclear or ambiguous (which it
is not), then, once read as part of the entire judgm ent, it most certainly never
required the first respondent to carry out the obligations expected of it by the
applicant. Anything to that effect would amount to an unwarranted extension of the
order, unsupported by the judgment.
[33] Consequently, the question of wilfulness or mala fides on the part of the
respondents does not arise. They cannot be found in contempt of the order in the
main application.
[34] Regarding costs, the applicant sought the implementation of the principles
enunciated in Biowatch Trust v Re gistrar, Genetic Resources, and Others. 14 In that
regard, the Constitutional Court considered the proper judicial approach for the
determination of costs awards in constitutional litigation. The court held, per Sachs J,
that:
‘ . . . it is not correct to b egin the enquiry by a characterisation of the parties. Rather, the
starting point should be the nature of the issues. Equal protection under the law requires that
costs awards not be dependent on whether the parties are acting in their own interests or in
the public interest. Nor should they be determined by whether the parties are financially well
endowed or indigent or, as in the case of many NGOs, reliant on external funding. The
primary consideration in constitutional litigation must be the way in which a costs order
would hinder or promote the advancement of constitutional justice.’15
[35] The court went on to say that what mattered was not the nature of the parties
or the causes that they advanced. Rather, what mattered was the character of the
litigation and the conduct of the parties in pursuit of it. 16 In a sense, all litigation is
constitutional. This is because the Constitution, as the supreme law of the Republic,
constitutional. This is because the Constitution, as the supreme law of the Republic,
invalidates law or conduct that is inconsistent with it and demands that its obligations
be fulfilled. 17 It is the standard against which the theatre of life and its dramatis
personae are measured. The principle that a party must comply with an order of
14 2009 (6) SA 232 (CC).
15 Para 16.
16 Para 20.
17 See section 2, Constitution of the Republic of South Africa, 1996.
court is integral to the supremacy of the Constitution. In Pheko II,18 the Constitutional
Court held, per Nkabinde J, that:
‘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 Constitution 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.’19
[36] Whether the present matter amounts to constitutional litigation for purposes of
applying the Biowatch principle is, however, a different issue. Considering the factual
matrix that informs the dispute, it cannot be said that it entails the direct enforcemen t
of clearly articulated constitutional rights and obligations. If anything, then the dispute
chiefly concerns the determination of rights and obligations that fall more accurately
within the orbit of the law of contract, albeit under the gravity and pull of the
Constitution, so to speak. It is unnecessary for the court, in the circumstances of the
case, to depart from the general rule when making the costs award. Scale B would
be appropriate.
[37] Consequently, the following order is made:
(a) the application is dismissed; and
(b) the applicant is ordered to pay the respondents’ party-and party costs,
on scale B, in terms of rule 67A read with rule 69 of the Uniform Rules
of Court.
_________________________
JGA LAING
18 See n 2 above.
19 Para 1.
JUDGE OF THE HIGH COURT
APPEARANCE
For the applicant: Adv Somandi
Instructed by: Kawondera Alex Attorneys
1 Glanville Street
MAKHANDA
Tel: 046 307 0046
Email: alex@kaattorneys.co.za
Ref: DEE1/0001/AK
For the 1st respondent: Adv Njokwana
Instructed by: Goldberg & De Villiers Inc.
Pembridge House
13 Bird Street, Central
GQEBERHA
Tel: 041 501 9801
Email: kugen@goldlaw.co.za
wilma@goldlaw.co.za
Ref: Mr K Pillay / Wilma / MAT23476
c/o Dullabh Attorneys
5 Bertram Street
MAKHANDA
Tel: 046 622 6611
Ref: Mr Dullabh
Date heard: 21 October 2025.
Date delivered: 25 November 2025.