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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 0024981/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
MASONDO, MATSIBENG JEANIFER Applicant
and
NKOSI, STEPHAN First Respondent
MASONDO, JUBULANI ERIC Second Respondent
LEKALAKALA, ABRAM Third Respondent
LEKALAKALA, MARONGWA HAZEL Fourth Respondent
In re:
LEKALAKALA, ABRAM First Applicant
LEKALAKALA, MARONGWA HAZEL Second Applicant
and
MASONDO, MATSIBENG JEANIFER First Respondent
ALL UNLAWFUL OCCUPIERS OF ERF 4[…] B[…]
V[…] X[…] V[…] D[…] L[…] ROAD, B[…] Second Respondent
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THE CITY OF JOHANNESBURG METROPOLITAN
MULICIPALITY Third Respondent
JUDGMENT
N KRÜGER AJ
Summary: Contempt of a court order- court order provides for an appointed liquidator
and receiver of a joint estate to pay 50% of the net proceeds of the sale of an
immovable property to the divorced parties -second respondent refuses to
vacate property on due date- purchasers having to serve their bond
nevertheless-no provision for occupational rental in contract of sale, liquidator
and receiver unilaterally deducting monies towards ‘occupational rental’ from
the second respondent’s share.
Introduction
[1] The applicant, Ms Masondo, seeks an order for the first respondent, Mr Nkosi,
to be found in contempt of a court order made on 20 January 2022 and
imprisonment for 30 days or such period as the court may deem just and
equitable, suspended for a period of one year on condition that the first
respondent pay the sum of R 83 453,29 within 10 days of service of the order.
Failing compliance, the applicant seeks an order to be allowed to approach the
court on the same papers for immediate committal to prison. In the alternative,
an order is sought for the court to impose a fine upon the first respondent to the
extent as deemed appropriate by the court.
[2] For the sake of convenience and to avoid confusion, I herein after refer to the
applicant as Ms Masondo and the first respondent as Mr Nkosi. The second
respondent is referred to as Mr Masondo, the third respondent as Mr
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Lekalakala and the fourth respondent as Ms Lekalakala. This application is only
opposed by Mr Nkosi.
[3] On 24 April 2019, the marriage between Mr and Ms Masondo was dissolved by
decree of divorce incorporating a settlement agreement. Mr Nkosi was
appointed as the receiver and liquidator of the joint estate. Included in the joint
estate was an immovable residential property which was purchased by Mr and
Ms Lekalakala on or about 4 August 2020 (“the contract”). In a let ter dated 10
September 2020 to Ms Masondo’s attorneys, Mr Nkosi requested Ms Masondo
to start looking for alternative accommodation as the property had been sold..
[4] On 10 March 2021 transfer of ownership in the property to Mr and Ms
Lekalakala was registered. In a letter dated 18 March 2021, Mr Nkosi informed
Ms Masondo’s attorneys that the bank had already debited the purchasers ’
account with effect from 10 March 2021. It is recorded Ms Masondo had long
known the property was to be sold and that the purchasers demand immediate
occupation of the property. Ms Masondo is given notice to vacate the property
on or before 22 March 2021, failing which she will be obliged to pay
occupational rent from 10 March 2021.
[5] When Ms Masondo failed to vacate the property, Mr and Ms Lekalakala brought
an application for her eviction as well as all unlawful occupiers of the property in
terms of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998. The eviction application was opposed by Ms Masondo.
On 20 January 2022 the order was granted which Mr Nkosi is alleged to be in
contempt of. It orders the eviction of Ms Masondo and all unlawful occupiers
from the property and for them to vacate it no later than 31 March 2022. Mr
Nkosi in his capacity as receiver and liquidator of the joint estate of Mr and Ms
Masondo is ordered to pay 50% of the net proceeds of the sale of the property
into a trust account of Ms Masondo’s attorneys of record. It is ordered that each
party shall pay its own costs.
party shall pay its own costs.
[6] According to a statement of account dated 11 March 2021 by Mr Nkosi’s firm,
the purchase price of the property was R 700 000,00 from which is deducted
the sum of R 73 297,27 leaving an amount of R 626 702,73 recorded as being
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“due to you”. It appears the latter refers to Mr and Ms Masondo. The statement
of account records R 73 297,27 is the sum of disbursements towards the
agent’s commission, the rates consultant’s fee, obtaining rates clearance and
electrical compliance certificates, the rates clearance figure and 10% interest
paid on behalf of Mr and Ms Masondo.
[7] Mr Nkosi prepared a provisional liquidation and distrib ution account the terms
of which differs from the statement of account in several respects. The amount
for the sale of the residence is recorded as R 626 707,83. From this is
deducted liabilities in the amount of R 66 389,27 which consists of a 10%
liquidation fee in the amount of R 62 670,77 and expenses towards a locksmith,
travelling and bank charges. The net amount available for distribution is
recorded as being R 560 318,46, half of which, namely R 280 159,23, each for
Mr and Ms Masondo. From Ms Masond o’s half further deductions are then
made in the total sum of R 83 453,29 consisting of R 72 853,65 for what is
described as occupational rental together with an amount of R 10 599,64
towards municipal rates for the period April 2021 to March 2022. In
consequence, the total amount due to Ms Masondo equals R 196 704,94.
[8] Upon distribution, Mr Masondo received R 280 159,23. Ms Masondo received
R 196 704,94 after the deductions as referred to in the liquidation and
distribution account.
[9] Though Mr Lekalakala did not oppose the contempt application, he filed an
affidavit deposed to on 23 July 2025. He states he took occupation of the
property on 17 April 2022 and has been paying the monthly instalments
towards the bond for 12 months from March 2021 to March 2022 whilst not
having occupation of the property.. The monthly bond instalment was
R 5 541,25. From his legal representative he had received a total amount of
R 67 114,95 as follows:
a. R 27 808,00 on 14 August 2021;
b. R 5 541,25 on 29 September 2021;
c. R 5 541,25 on 15 November 2021;
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d. R 11 408,32 on 5 January 2022;
e. R 10 816,13 on 21 April 2022;
f. R 6000,00 towards counsel’s fees. It is unclear what these fees were for.
[10] During the course of argument before me, it became clear certain aspects
which counsel for both parties did not entertain before, may be pertinent to the
adjudication of the matter. In the result, the parties were allowed to file
additional heads. The last of these was received on or about 22 September
2025.
Ms Masondo’s case in summary
[11] During argument counsel for Ms Masondo placed on record that she
abandoned her claim towards municipal rates in the amount of R 10 599,64 for
the period April 2021 to March 2022.
[12] The contract pertaining to the property did not contain any clause providing for
payment of occupational rental. The contract expressly records in the clause
which referees to occupational rental that it is “ N/A” which it is contended
means “not applicable”. Any claim for occupational rent al and any claim in
connection therewith fall outside the ambit of the contract . Mr Nkosi unilaterally
decided not only that occupational rental was due, payable and was to be
deducted from the monies due to Mr Masondo, but also what it would be,
namely R 5643.00 for March 2021, R 5 546,25 for April 2021 unt il September
2021, R 5 573,25 for October and November 2021 and R 5 704 from December
2021 until March 2022 as recorded in the liquidation and distribution account.
[13] It was contended legitimate deductions to be made from the gross proceeds of
the sale are the usual disbursements associated with a sale of a house such as
agents commission, obtaining the rates clearance certificate as well as an
electrical compliance certificate. A ny deduction of occupational rental or
deduction in connection therewith falls outside the meaning of ‘net proceeds’ as
contemplated in the court order for the liquidator to make payment of 50% of
the net proceeds of the sale. Mr Nkosi had acted arbitrarily in doing so. He did
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not fully comply with the court order, In consequence, Mr Nkosi had acted in
contempt thereof.
[14] In effecting the deduction as he did, Mr Nkosi acted in bad faith as he is an
attorney with experience and knowledge of the law. It is not his case that he
had been mistaken as to the legal position pertaining to the legality of the
deductions applied by him. Nor was it pleaded in the answering af fidavit that he
had exercised any discretion in applying the deductions. The arguments
advanced by Mr N kosi’s counsel in this regard are speculative and should be
disregarded.
[15] Ms Masondo’s counsel referred me to Fakie N.O. v CCII Systems (Pty) Ltd 1 in
which the Supreme Court of Appeal found, amongst others, that non-
compliance, provided it is bona fide, does not constitute contempt. Disregard of
a court order must be a deliberate and intentional violation of the court’s dignity,
repute or authority. An honest belief that non-compliance is justified or proper is
incompatible with that intent.
[16] The reason Ms Masondo did not vacate the property as demanded was
because at the time she had not received any funds or portion thereof from the
sale of the property. She required the money to obtain new accommodation.
The property was occupied by her and her son, then aged 29, as well as her
minor grandchildren. The transferring attorneys paid R 626 707,73 to Mr Nkosi
on 15 March 2021, but he only affected payment to Ms Masondo after the court
order for her eviction which is dated 20 January 2022. It was submitted that, in
the result, Mr Nkosi has his share of blame to shoulder for what occurred.
[17] Ms Masondo contends she is entitled to the amount of R 72 853,65 which was
deducted from her share. In acting as he did, Mr Nkosi did not fully comply with
the court order and, in consequence, is guilty of contempt of court.
Mr Nkosi’s case in summary
[18] It is denied Mr Nkosi did not comply with the court order as well as that his
[18] It is denied Mr Nkosi did not comply with the court order as well as that his
conduct was wilful and mala fide. According to Mr Nkosi, Ms Masondo’s liability
1 2006 (4) SA 326 (SCA) at [10]
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for payment of the amounts deducted from her share accrues due to her having
refused to vacate the property after registration of transfer of ownership in the
name of the purchasers. The purchasers were obliged to pay the bond on the
property without having the benefit of occupation thereof due to Ms Masondo’s
refusal to vacate it. Mr Nkosi considered such a state of affairs a s not being fair
to Mr and Ms Lekalakala. The ‘occupational rent’ was determined by the ‘bond
price’ and “had to be reimbursed”.
[19] It is contended Mr Nk osi’s conduct was in good faith in that he exercised his
discretion as liquidator and distributor of the seller’s joint estate in making the
deductions from Ms Masond o’s share as he did. According to Mr Nkosi, an
argument that it was incumbent upon the purchaser of the property to have
claimed any loss suffered as a result of Ms Masondo not vacating the property,
does not hold water “…since the money is available and there was a liquidator
appointed to accordingly distribute the proceeds.”
[20] According to Mr Nkosi the absence of any clause providing for occupational
rent “… does not find applicability… ” There was no need for it “…since the new
buyer wanted to occupy the house, and the applicant was unnecessarily difficult
hence the eviction proceedings.”
[21] With reference to T[…] M[…] B[…] v M[…] C[…] R[…] and Others
2 it was
submitted that the standard of proof required for an applicant to discharge in
contempt proceedings where committal is ordered, is similar to the criminal
standard. Since the relief claimed is for Mr Nkosi to be commit ted to jail should
he fail to make payment as demanded, Ms Masondo must be required to prove
the elements for contempt beyond reasonable doubt.
[22] It was contended more is required in establishing contempt than an act of non-
compliance. In Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector including Organs of
State v Zuma and Others
State v Zuma and Others
3 it was held contempt also encompasses the nature
of the contempt, its extent and surrounding circumstances. I was also referred
2 (328/22) [2024] ZAGPPHC 1062 (30 October 2024) at [12] by Mncube A J
3 2021 (5) SA 327 (CC) at [92]
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to Pheko and Others v Ekurhuleni Metropolitan Muni cipality (2) 4 where the
Constitutional Court found contempt to be any act that displays disrespect for
the authority of the court. It includes acts of obstinate disobedience in the sense
of wilful disobedience and resistance to an order of court.
[23] It was argued that as all deductions made from Ms Masondo’s share are
accounted for and as it was her own doing which created and caused the
deduction to be made, contempt had not been established beyond reasonable
doubt. Regard being had to the circumstances, the appropriate remedy more
likely would have been review proceedings.
[24] Lastly, it was submitted on behalf of Mr Nkosi that in making the deduction from
Ms Masondo’s share, he had exercised a discretion which is intrinsic to the
duties and obligations of a liquidator, after consideration of all submissions and
upon investigation. In this regard, Mr Nkosi’s counsel referred me to S[…] S[…]
M[…] v P[…] J[…] N.O and Another5 where it was held by Le Gran ge AJ that
the liquidation and distribution account in and of itself has no legal force. If the
parties or any affected party do not accept the account, the li quidator or any
affected party should approach the court to ensure finality. The court should
then either confirm, amend or clarify the account and grant, where necessary
further and alternative relief to enable the liquidator to bring the joint estate to
practical conclusion.
Consideration
[25] It is vital to the administration of justice that court orders be obeyed. Disregard
of a court order cannot be tolerated. Civil contempt is contempt ex facie curiae
(which occurs outside of the court) and refers to contempt by disobeying a court
order. Contempt includes acts of contumacy in the sense of wilful disobedience
as well as in the sense of resistance to a court order.
6 It is a crime. 7 In civil
proceedings committal may be ordered for coercive of punitive reasons. It
proceedings committal may be ordered for coercive of punitive reasons. It
seeks to compel the delinquent litigant to compel with the court order. Coercive
4 2015 (5) SA 600 at [28]
5 (15515/2017) [2023] ZAGPPHC 2024 (18 December 2023)
6 Pheko [28]
7 Fakie at [8] approved in Pheko at [34]
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contempt orders call for compliance with the original court order as well as the
following contempt order. The delinquent litigant against whom a contempt
order is granted may avoid imposition of a sentence for committal by complying
with the coercive order.
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[26] The purpose of civil contempt proceedings is for a court order in civil
proceedings to be brought to conclusion by the imposition of a sanction to
vindicate the court’s authority.
9 Contempt at its core is the “… crime of
disrespecting the court , and ultimately the rule of law .” 10 It has been held that
for an act to constitute contempt, an intention to defeat the course of justice
must have been established.
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[27] Concerning the nature and extent of the infraction of the court order, it was thus
stated by the Supreme Court of Appeal in Fakie:
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“The test for when disobedience of a civil order constitutes contempt has come to be stated
as whether the breach was committed 'deliberately and mala fide'. A deliberate disregard is
not enough, since the non- complier may genuinely, albeit mistakenly, believe him or herself
entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids
the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness could evidence lack of good faith).
These requirements - that the refusal to obey should be both wilful and mala fide, and that
unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord
with the broader definition of the crime, of which non- compliance with civil orders is a
manifestation. They show that the offence is committed not by mere disregard of a court
order, but by the deliberate and intentional violation of the court's dignity, repute or authority
that this evinces. Honest belief that non- compliance is justified or proper is incompatible with
that intent.
”
that intent.
”
[28] In this matter the issues to be adjudicated in respect of the trite requisites to
establish contempt are non- compliance with the court order, wilful conduct by
Mr Nkosi in doing so and whether his conduct was mala fide. Having due
regard to the relief claimed as framed by Ms Masondo to include committal,
once non- compliance of the order is proved, Mr Nkosi bears an evidential
burden in relation to wilfulness and mala fides . Should no evidence be
advanced establishing reasonable doubt as to whether non- compliance was
8 Pheko [25]
9 Pheko [39]
10 Pheko [31]
11 Coconut Express CC v SA Revenue Service (Customs & Excise) 2016 2 All SA 749 (KZD)
at [43]
12 At [9]. This dictum was followed in several cases such as Els v Weideman and Others 2011 (2) SA
126 (SCA) and De Freitas v Jonopro (Pty) Ltd and Others 2017 (2) SA 450 (GJ)
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wilful and mala fide, it would follow that contempt has been established beyond
reasonable doubt.13
[29] In his answering affidavit sets out in chronological detail facts and
circumstances prevailing in respect of the sale of the property. Numerous
letters that passed between him and Ms Masondo’s attorney are annexed to
the affidavit. Much of this revolves around attempts to obtain Ms Masondo’s co-
operation in evacuating the property in order to allow the purchaser occupation
and possession thereof. In a letter dated 7 March 2022 to Ms Masondo’s
attorneys, Mr Nkosi, amongst others, explains he reason why deductions for
occupation rental were visited upon Ms Masondo, was because she was the
one who was occupying the property even after being notified it had been sold
and belongs to new owners. He denies that his conduct is in contempt of the
court order. Mr Nkosi declares:
“Had the applicant & his [sic] legal representative needed [sic] the call to vacate the property
on 10 March 2022 and pay occupational rent, the situation would have been different.
I find it incomprehensible to expect the applicant to stay on the property for 12 months without
paying occupational rent.
I reiterate the applicant has received 50% of the net proceeds of the sale of the immovable
property””
[30] Mr Nkosi further states that the order and settlement agreement nowhere states
Ms Masondo would remain in occupation of the property pending payment of
her 50% share of the selling price to enable her to relocate. He maintains that
“… if she chooses to remain to stay in the property she must pay occupational
rent.” He further declares that had complied with the court order in that he had
paid 50% of the net proceeds as required by the order and that the deduction
were made from her share of the proceeds as she had remained in occupation
of the property contrary to the contractual provisions. He had distributed the
assets of the joint estate in accordance with his duties as appointed receiver
assets of the joint estate in accordance with his duties as appointed receiver
and liquidator in terms of which, amongst others he was to receive, liquidate
and distribute the assets according to law and with full power to di vide and
distribute the joint estate.
13 Fakie at [42]
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Conclusion
[31] Clauses 1.9 and 6 of the contract provide for the occupation date to be upon
the date of registration. It further stipulates 14 that i f vacant possession for
whatever reason not be given on that date , the conveyancer shall withhold the
sellers’ net proceeds of the sale in trust until such vacant possession is given to
the purchasers. It appears that the Masondo’s did not obtain a right tots
payment of the net proceeds until such time a vacant possession was given to
the In the result, Ms Masondo’s contention that Mr Nkosi, in withholding
payment of her share until after the eviction order was granted has his share of
blame to shoulder for her not having vacated the property is more apparent
than real.
[32] The contract indicates occupational r ental as not being applicable. 15 In the
result, the purchasers did not have a contractual right as against the sellers of
the property to claim occupational rental, nor had the sellers any obligation to
pay occupational rental upon vacant possession not being given on date of
registration. It follows that Mr Nkosi did not have the right to have made the
deductions as he did in doing so, he had acted unilaterally.
[33] From the above, it is clear to me that Mr Nkosi’s conduct leaves much to be
desired. The question to be answered is if his conduct constitutes contempt of
the court order. From the answering affidavit it seems to me Mr Nkosi was and
remains oblivious of the error of his ill-advised ways. The authorities require
that, even though there is a deliberate disregard of a court order by and of itself
is not enough. Objectively speaking, Mr Nkosi was wrong, but he subjective ly
believes he had acted correctly in ‘correcting’ the imbalance which was wrought
to the other parties by Ms Masondo remaining in occupation of the property
when she was not entitled to do so and the purchasers having to service their
bond whilst the remained in possession of the property. It follows that he had
bond whilst the remained in possession of the property. It follows that he had
not acted with wilful mala fides . It cannot be held that his conduct, albeit
unreasonable, was intended to impugn the court's dignity, repute or authority ,
14 Clause 6.4, CL24-27
15 Clause 1.10, CL24-25
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nor to disrespect the court or offend against the rule of law. In the result, I make
an order as set out hereunder.
Order
[1] The application is dismissed;
[2] The applicant shall pay the first respondent’s costs on the party and party scale
B.
___________________________
N S KRÜGER
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
Electronically submitted
Delivered: This judgment was prepared and authored by the Acting Judge
whose name is reflected and is handed down electronically by circulation to the
parties / their legal representatives by email and by uploading it to the
electronic file of this matter on CaseLines. The date of the judgment is deemed
to be 11 December 2025
Counsel for the applicant: Adv P J Coetsee
Instructed by: Ledwaba Attorneys
Counsel for the first respondent: Adv E Khotha
Instructed by: Steve Nkosi & Partners
Additional heads of argument: 21 and 22 September 2025
Date of judgment: 11December 2025
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