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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL DIVISION PIETERMARITZBURG
CASE NO: 13341/23P
Before: Honourable Ncube J
Heard on: 14 August 2025
Delivered on: 13 March 2026
In the matter between:
COUNCIL FOR GEOSCIENCE Applicant
and
GEOSONIC (PTY) LTD First Respondent
HEINZ VON FINTEL Second Respondent
ORDER
1. The Application is dismissed with costs
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JUDGMENT
NCUBE J
Introduction
[1] This is opposed application for contempt of court. The Applicant seeks an order
declaring the First Respondent to be in contempt of this court’s order (Sibiya J) handed
down on 07 October 2024, requiring the First Respondent to deliver a fully functional
Drill Rig. In addition, the Applicant seeks that the Second Respondent (“Mr Von
Fintel”) being the Director of the First Respondent, be committed to prison for a period
of thirty (30) days or for such other period as the Court may determine
Court Order
[2] The court order granted by consent on 07 October 2024 reads:
“ 1. The First Respondent shall, within a period of 14 (fourteen) days from the
date of this order,
1.1. Deliver to the Applicant a fully function (sic) Core and Percussion Drill
Rig, as per clause 3.3 of the settlement agreement concluded between
the parties ( hereinafter referred to as (“ the agreement”) in compliance
with the requirements set out in Bid No ( GS -2021-008A (hereinafter
referred to as “the Bid” free from any defects.
1.2. Deliver all tools and equipment identified in the Bid and Contempt as in
the settlement agreement, including a percussion reverse circulation
rotation head.
1.3. Take all steps necessary to ensure that all training is completed in
respect of the functionality and operation of the Drill as contemplated in
the Bid, and as envisaged in paragraph 2.6.6 of the agreement and
2 The costs of this application to be paid by the First Respondent
on a scale as between attorney and client.”
Background Facts
[3] It is not necessary to discuss all the background facts herein. It suffices to say
that whatever dispute s existed between the parties , such disputes were resolved in
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terms of the settlement agreement, concluded between the parties on 15 May 2023.
The court order mentioned earlier in this judgment, refers to only two clauses of the
settlement agreement. Those are clause 3.3 and 2.6.6. Clause 3.3 reads:
“ Geosonic hereby in turn agrees to complete the Projec t and supply an d
deliver a fully functionally Drill to the CGS such that all oil leaks are remedied,
all defects rectified, the FAT is reached and the necessary and required training
is completed on or before 30 J une 2023, in the manner prescribed and as
contemplated between the parties as set out in the Bid, the Bid Document and
the Collective Agreement”
Clause 2.6.6 reads
“ The registration homologation and licensing of the Drill , truck trailers and
related equipment, in the name of the CGS is to be completed, including but
not limited to all the road worthy requirement met which costs in respect of such
licensing, road worthy accreditation , homologation, shall be for the sole
account of Gqozi.”
Requirements For Contempt of Court
[4] The requirements for a civil contempt of court are now trite. The first requirement
is that the court order must exist. The respondent must have knowledge of it. There
must be non -compliance with the said order. Lastly the non-compliance must have
been wilful and mala fide. Once the first three requirements are proved , wilfulness
and mala fides will be presumed. In that instance, the evidentiary burden of proving
that the non-compliance was not wilful and mala fide shifts to the Respondent.
Common Cause Facts
[5] The existence of the court order is not in dispute. It is also not in dispute that the
Respondents have knowledge of the order. It is equally common cause that the Drill
Rig was in fact delivered. It is also common cause that there was testing of the Drill
and training of the Applicant’s employees on the Applicant’s premises.
Facts in Dispute
and training of the Applicant’s employees on the Applicant’s premises.
Facts in Dispute
[6] It is in dispute, whether the Bid required field testing or whether it only required
testing and training of staff on the Applica nt’s premises. Whether the Drill is fully
functional is also in dispute.
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The Burden of Proof
[7] The Applicant has an onus to establish that the First Respondent did not comply
with the court order which requires delivery in terms of the Bid . Since the Applicant
seeks a sanction in the f orm of imprisonment against the Second Respondent, there
must be proof of non-compliance beyond a reasonable doubt. The Respondents aver
that they complied with the court order. In case the Applicant succeeds to prove non-
compliance, the First Respondent will have to show a lack of wilfulness and mala fides.
Discussion
[8] The Applicant is required to prove that the First Respondent is guilty of contempt
of court in that the First Respondent has intentionally and deliberately disregarded or
disobeyed the court order granted on 07 October 2024, in that the First Respondent
intentionally and deliberately failed or refused to deliver a fully functional Core and
Percussion Drill Rig as per clause 3.3 of the settlement agreement in compliance with
the requirements set out in Bid No CGS -2021-008A. On the other hand, the
Respondents must discharge the evidentiary burden to advance evidence which
establishes a reasonable doubt as to whether their non-compliance, if any, was wilful
and mala fide.
[9] In casu, the Respondents deny that they disobeyed the court order. They aver
that they have fully complied with the court order. Therefore, there can be no shifting
of onus to the Respondents. If first three requirements of contempt were established,
the onus would have shifted to the Respondents to advance ev idence establishing
lack of wilfulness and mala fides.
[10] The court order of 07 October 2024, requires the Respondents to deliver to the
Applicant a fully functiona l Cor and Percussion Drill Rig, as per clause 3.3 of the
settlement agreement in compliance with the requirements set out in Bid No CGS -
2021-008A free from any defects. Paragraph two of the same court order requires the
2021-008A free from any defects. Paragraph two of the same court order requires the
Respondents to deliver all tools and equipment identified in the Bid and contemplated
as in the agreement including a percussion reverse circulation rotation head and to
take all steps necessary to ensure that training is completed in respect of the
functionality and operatio n of the Drill as contemplated in the Bid, and envisaged in
paragraph 2.6.6. of the agreement.
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[11] As mentioned earlier in this judgment, paragraph 3.3 of the settlement agreement
states:
“Geosonic hereby in turn agrees to complete the project and supply and
deliver a fully functional Drill to the CGS such that all leaks are remedied,
all defects rectified, the FAT is reached and the necessary and required
training is completed on or before 30 J une 2023, in the manner
prescribed and as contemplated between the parties and as set out in
the Bid , the Bid Document and the Collective Agreement.”
[12] The court order does not define the phrase “fully functional”. The settlement
agreement, in its interpretation clause, also does not tell us what is a “ fully functional
Drill Rig”. The definition of a “fully functional Drill Rig” turns on the Applicant’s own
interpretation of the court order. The source of the definition chosen by the Applicant
is not clear to me. The Applicant avers that for th e Respondents to fully comply with
the court order, the Applicant must be satisfied that:
“71.1 The Respondent complies fully and properly with its obligations in
terms of clause 3.3 of the settlement agreement and hands over to the
Applicant a fully functional Drill, free from any defects and oil leaks
71.2 FAT is reached (FAT is Factory Acceptance Testing)
71.3. All training is completed and commissioning is reached and all
tooling equipment is delivered; and
71.4. The total completion of the registration and licensing of the Drill,
truck and trailers and related equipment into the name of the
Applicant, including all roadworthy, accreditation, and
homologation, as contemplated and prescribed in the Tender
Document…….”
[13] It must be mentioned that as of now, the Applicant does not know whether the
Drill Rig is fully functional or not. The Applicant has never attempted to put the Drill
Rig into operation. Under those circumstances the Applicant cannot say the Drill Rig
is not fully functional.
is not fully functional.
[14] The Respondents argue that the court order re quired delivery to take place in
terms of the Bid and that the Bid did not require a “field test”. The Respondents have
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tendered to “field test” the Drill against payment for that test . Respondents aver that
they complied will all the snags which were identified by the Applicant . Both parties
agree that there was agreement to commission the Drill Rig. The Collins Concise
English Dictionary 2004 defines “Commission” as meaning “good working condition”
15] The Respondents aver that there was no requirement of field testing of the Drill
which they call “ hot commissioning” and that all that was required was “ cold
commissioning”, which is the testing of the Drill and training of Applicant’s employees
on the Applicant’s premises, which was done.
[16] Respondents aver that cold commissioning was done in October 2023 and it was
finalised in October 2024 when the testing of the Rig took place on the Applicant’s
premises. Respondents have attached photographs of the parts of the machine which
were attended to during the testing of the machine as annexure GS4. The training of
Applicant’s 8 employees took place on 11 August 2023 . The copy of the training
register, signed by employees trained is attached as G S5. The register records that
the people whose names and signatures appear on the register “received training on
the OPERATION of the Bohmeister Multi -Purpose Crawler Drill Rig Model #
BM2500MP-CR Serial # G-M0113 Customer: Council for Geoscience”
[17 The Applicant has, on its Replying Affid avit, attached a Proposal (Function
Response) by the Respondents which was accepted by the Applicant. This document
lists the function s which the Respondents will carry out. Amongst other things the
document reads:
“ The most important milestone of the QCP is the FAT where all parties involved
are required to witness, inspect and sign off before delivery to site”
In so far as the commissioning and training is concerned, the document reads:
“Commissioning Training at our works is included in our offer. Additional on
site training requested at agreed rates(My own emphasis).
site training requested at agreed rates(My own emphasis).
[18] Parties tested the Drill and signed off, in terms of paragraph 17 above. A “Client
signed off Form ” is attached to the Answering Aff idavit and marked GS1. The
inspection date is indicated as being the 16 October 2024. The sign off f orm was
signed by the Second Respondent and 3 representatives of the Applicant. The sign
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off form, also indicates the defects which were identified and repaired during the
inspection. Indeed, in terms of the proposal, accepted by the Applicant, additional on
site or field training may be requested at additional rate agreed upon.
[19] The copy of the Bid, attached to the Replying Affidavit, apart from specifications
of the Drill, specifies the “minimum requirements”. Under minimum requirements the
Bid reads:
“Provide a proposal for a three year maintenance contract for servicing and
maintaining the drill rig by an accredited service provide/agent for the specific
equipment, proposal including service intervals emergency support and costing
structure. The supplier must have the ability to do repairs and maintenance on
drill rigs and the compressor with trailer within the boarders of South Africa, or
be able to appoint sub agents where possible. Provide proof of ownership , or
a rental agreement of the workshop where the work will be done. This will be
verified during the site inspection.”
The Bid does not require on site testing or training or hot commissioning.
Finding
[20] On the facts before me, there is no proof that the First Respondent is in contempt
of the Court order dated 07 October 2024. There is thus no basis for the committal of
the Second Respondent to prison.
Order
[21] In the result, I make the following orders:
1. The application is dismissed with costs.
________________________
NCUBE J
Judge of the High Court of South Africa
Kwazulu-Natal Division
Pietermaritzburg
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Appearances:
For the Applicant and
Fifth Respondent : Adv De Vos
Instructed by: DMO Incorporated Attorneys
Block B, 3 Grosvenor Road
Bryanston
For the 1st &2nd Respondents: Adv Van Lingen
Instructed by : Colyn Townsend Attorneys
Suite 1,1st Floor, The Colony
3 Inanda Road,
Hillcrest
Heard: 14 August 2025
Delivered on: 13 March 2026