IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: D14519/2024
In the matter between:
NATIONAL BIOPRODUCTS INSTITUTE NPC APPLICANT
and
THOKOZANI PETRUS CEBEKHULU RESPONDENT
ORDER
The following order is made:
1. The rule nisi issued on 3 December 2024 is confirmed.
2. The respondent is declared to be in contempt of the order of this Court dated
3 December 2024.
3. The respondent is directed to purge his contempt by:
3.1 Identifying, under oath, the person who signed the anticomplementary
activity (“ACA”) and fragment crystallisable function (“Fc”) test results
referred to in the main order;
3.2 Authenticating all relevant test results as required by paragraph 6 of
the order dated 3 December 2024; and
3.3 Delivering such affidavit and authenticated documents within seven
days of service of this order.
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4. Failing compliance, the applicant may enrol the matter on 48 hours’ notice for
imposition of sanctions.
5. The respondent shall pay the costs of the main and contempt applications on
the attorney -and-client scale, including costs of senior counsel where
employed.
JUDGMENT
Delivered: 28 November 2025
MASIPA J
Introduction
[1] This matter concerns the confirmation of a rule nisi issued on 3 December 2024
and whether the respondent is in contempt of that order. The applicant seeks final
relief compelling the respondent to return and authenticate specified
anticomplementary activity (“ACA”) and fragment crystallisable function (“Fc”) results
generated during his tenure as Quality Control Manager. Following the respondent’s
alleged non-compliance with the December 2024 order, a contempt application was
launched, and a consent order was granted on 30 January 2025 directing the
respondent to file an explanatory affidavit if he was unable to comply.
[2] The respondent filed no answering affidavit to oppose the main application. The
only affidavit deposed to by him is the explanatory af fidavit delivered pursuant to the
contempt order. Notwithstanding this, his counsel filed written submissions. For
reasons that follow, the matter remains unopposed, and the proper factual matrix must
be assessed solely on the applicant’s affidavits and th e respondent’s explanatory
affidavit.
Background and procedural history
[3] On 3 December 2024, the applicant obtained an urgent order directing the
respondent to return specified ACA and Fc test results and to authenticate them. The
respondent, who had b een the custodian of these results for the applicant for more
than three decades, was served with the order and given clear obligations to perform.
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The respondent did not comply. Consequently, the applicant instituted contempt
proceedings. These culminated in a consent order before Hemraj AJ on 30 January
2025. In terms of that order, the respondent was required to file an explanatory affidavit
within five days should he be unable to comply with the main order.
[4] On 7 February 2025, the respondent filed an explanatory affidavit. He did not
file an answering affidavit, nor a notice of intention to oppose, at any point. The matter
was thereafter set down on the opposed roll, but that administrative classification does
not alter the nature of the pleadings.
Whether the respondent opposed the application
[5] Uniform rule 6(5) (d)(ii) requires a respondent wishing to oppose motion
proceedings to file an answering affidavit. The respondent did not do so. Filing heads
of argument does not amount to opposition and cannot substitute for evidence under
oath. Material disputes of fact cannot arise from submissions by counsel. The matter
is therefore unopposed. The court must consider the applicant’s version together with
the respondent’s explanatory affidavit but cannot attach evidentiary weight to the
submissions contained in heads of argument filed on his behalf.
The respondent’s explanatory affidavit
[6] In his affidavit, the respondent claims to have returned data in his possession
and asserts that he cannot authenticate certain information because his employment
ended. He suggests that the matter is moot since he no longer has access to all the
records. These assertions do not address the core factual duties placed upon him by
the December 2024 order. Crucially, a lthough he was the custodian of the ACA and
Fc tests and the only person who could identify the signatory on the test results, he
refuses to disclose who signed them. No attempt is made to describe the storage
process, retrieval method, or chain of custody of the documents. He does not explain
process, retrieval method, or chain of custody of the documents. He does not explain
what he did upon leaving the applicant’s employ, nor whether he took steps to secure
or return data. The affidavit is incomplete, vague, and does not meaningfully address
compliance. It therefore cannot constitute ade quate compliance with paragraph 2 of
the contempt order.
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Applicable legal principles
Contempt of court
[7] The test for civil contempt arises from Fakie NO v CCII Systems (Pty) Ltd ,1
which held that the applicant must prove (a) the order; (b) service or notice; and (c)
non-compliance. Once these are established, the evidential burden shifts to the
respondent to show that non -compliance was neither wilful nor mala fide . Section
165(5) of the Constitution requires that court orders bind all persons. In Pheko and
Others v Ekurhuleni City,2 the Constitutional Court stressed that the rule of law
demands obedience to court orders and that disobedience risks rendering judicial
authority a “mere mockery”.
[8] In Matjhabeng Local Municipality v Eskom Holdings Ltd and Others ,3 the
Constitutional Court emphasised that wilful non -compliance particularly by persons
previously holding responsibilities threatens the administration of justice. Similarly, in
Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma
and Others,4 the Constitutional Court reaffirmed that defiance of a court order “strikes
at the heart of the rule of law” and warrants decisive judicial intervention.
Motion proceedings
[9] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another ,5 the
Supreme Court of Appeal held that a real dispute of fact arises only when the
respondent seriously and unambiguously engages with the applicant’s allegations.
Bare denials or evasive assertions are insufficient, particularly where the facts lie
within the respondent’s exclusive knowledge.
Analysis
[10] The applicant’s case is founded upon clear, uncontested factual averments
establishing that the respondent was the senior custodian of the ACA and Fc testing
1 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (Fakie) para 42.
2 Pheko and Others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC) (Pheko) para 1.
2 Pheko and Others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC) (Pheko) para 1.
3 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others [2017] ZACC 35; 2018 (1) SA 1 (CC)
para 67.
4 Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021]
ZACC 18; 2021 (5) SA 327 (CC) (Secretary, JCI v Zuma) para 26.
5 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371
(SCA) (Wightman) para 13.
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regime. He held this responsibility for more than thirty years. The applicant’s evidence
shows that all ACA and Fc results generated by the respondent or under his
supervision were subject to an internal process of review, authentication, and sign-off.
These processes formed a critical part of the applicant’s regulatory, quality-assurance,
and public-safety obligations. It is against this backdrop that the respondent’s conduct
must be assessed, as it demonstrates the gravity of the obligations imposed on him
by the December 2024 order.
[11] The respondent does not dispute that he was the custodian of these test results
nor does he deny that the applicant repeatedly demanded the return and
authentication of ACA and Fc data. These undisputed facts have two implications.
First, they establish th at the respondent was uniquely positioned to comply with the
order because he possessed the direct knowledge enabling him to identify the
signatory, authenticate the documentation, and confirm the integrity of the test data.
Second, they demonstrate that f ailure to comply is not the result of ignorance or
inadvertence but arises from a conscious withholding of information.
[12] The respondent’s explanation that he “no longer has access” because his
employment ended is illogical. Authentication requires, at minimum, disclosure of the
identity of the analyst or signatory and confirmation that the contents of the results
correspond with the records generated or reviewed. These are matters falling within
his personal knowledge, not dependent on access to the ap plicant’s facilities. The
respondent’s silence on whether he performed the ACA tests himself or supervised
them is equally troubling. The applicant’s replying affidavit demonstrates that the
respondent has never explained who signed the results or how the signature was
generated. Whether he personally performed the tests or supervised them, he would
necessarily know the signatory. His refusal to disclose this is inconsistent with bona
necessarily know the signatory. His refusal to disclose this is inconsistent with bona
fide compliance.
[13] The principle in Wightman applies. The respondent’ s affidavit does not
“seriously and unambiguously” address the central allegations. Where the applicant’s
version is supported by documentary evidence and undisputed facts, the respondent’s
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bare assertions cannot create a dispute. The rule in Plascon-Evans6 requires this
Court to accept the applicant’s version. The unexplained refusal to identify the
signatory raises the inference that the signature is irregular. Whether it was forged,
improperly inserted, or reflects an incomplete testing process, the respondent’s refusal
to engage reinforces the inference of wilfulness.
[14] Applying Fakie, the respondent has failed to rebut the inference of wilfulness.
His termination of employment cannot extinguish obligations under a court order. He
offers no substanti ve steps taken to comply. The broader constitutional context
reinforces this conclusion. Section 165 of the Constitution mandates that court orders
bind all persons. In Pheko the Constitutional Court held that disobedience strikes at
the heart of the judicial system. The respondent’s seniority within the applicant’s
scientific governance structure renders his breach particularly serious. He was
entrusted with safeguarding data critical to public safety. For these reasons, the Court
finds that the respondent is in wilful and mala fide contempt, and that the applicant has
established an entitlement to confirmation of the rule nisi.
Costs
[15] The respondent’s conduct compelled the applicant to incur unnecessary costs.
In Secretary, JCI v Zuma, the Constitutional Court confirmed that punitive costs are
warranted where conduct undermines judicial authority. The respondent’s failure to
comply, refusal to disclose critical information, and failure to oppose properly, warrant
a punitive attorney-and-client order.
Order
[16] In the result, the following order is made:
1. The rule nisi issued on 3 December 2024 is confirmed.
2. The respondent is declared to be in contempt of the order of this Court dated
3 December 2024.
3. The respondent is directed to purge his contempt by:
3.1 Identifying, under oath, the person who signed the anticomplementary
3.1 Identifying, under oath, the person who signed the anticomplementary
activity (“ACA”) and fragment crystallisable function (“Fc”) test results
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
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referred to in the main order;
3.2 Authenticating all relevant test results as required by paragraph 6 of
the order dated 3 December 2024; and
3.3 Delivering such affidavit and authenticated documents within seven
days of service of this order.
4. Failing compliance, the applicant may enrol the matter on 48 hours’ notice fo r
imposition of sanctions.
5. The respondent shall pay the costs of the main and contempt applications on
the attorney -and-client scale, including costs of senior counsel where
employed.
___________________
Masipa J
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Details of the matter:
Date of Hearing: 5 November 2025
Date of Judgment: 28 November 2025
Appearances:
For the applicant: Mr A Stokes (SC)
Instructed by: MacGregor Erasmus Attorneys Inc
For the Respondent: Mr SN Mlondo
Instructed by: Ngcamu Attorneys Incorporated,
Pietermaritzburg