SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 11348/2019
In the matter between:
ROCHELLE LUPACCHINI N.O. Applicant
In her capacity as the duly appointed executrix in
the estate of the late Christine Lesley Contnradie,
Master’s reference 004908/2025
and
THAT COLLECTIVE (PTY) LTD First respondent
LAVINA SUZETTE BELL-ROBERTS Second respondent
BRENDON JOHN BELL-ROBERTS Third respondent
BYRON LYNDON SMITH Fourth respondent
In re:
CHRISTINE LESLEY CONRADIE Applicant
and
THAT COLLECTIVE (PTY) LTD First respondent
BYRON LYNDON SMITH Second respondent
Coram: Van Zyl, AJ
Heard on: 3 November 2025, final submission s made on 13
November 2025
Judgment: : 24 March 2026
Summary: Contempt of court – no order to be granted against deregistered
company – orders granted against director and de fact o director of company –
sufficient factual or legal basis to hold them in contempt despite absence of formal
joinder application
___________________________________________________________________
ORDER
1. The late delivery of the applicant’s replying affidavit is condoned.
2. The application is dismissed as against the first respondent.
3. The second and third respondents are found to be in contempt of the
court order dated 18 February 2020, granted under case number
11348/2019.
4. The second and third respondents are each sentenced to payment of a
fine of R15 000,00 (fifteen thousand rand), alternatively, to 1 (one)
month’s imprisonment, which sentence is suspended for a period of 24
months on condition that the second and thi rd respondents ensure
compliance with the first respondent’s obligations under the court order
dated 18 February 2020 within this period.
5. In the event of the second and third respondents failing to comply with the
provisions of paragraph 4, the applicant shall be entitled to apply on the
same papers, duly amplified if necessary and on notice to the second and
third respondents, for an order uplifting the suspension of the sentence
and for enforcement of the fine, alternatively, for a warrant of arrest to b e
issued for such respondents’ committal.
6. The fourth respondent is found to be in contempt of the court order dated
17 August 2019, granted under case number 11348/2019.
7. The fourth respondent is sentenced to payment of a fine of R15 000,00
(fifteen thou sand rand), alternatively, to 1 (one) month’s imprisonment,
which sentence is suspended for a period of 24 months on condition that
the fourth respondent comply with his obligations under the court order
dated 17 August 2019 within this period.
8. In the eve nt of the fourth respondent failing to comply with the provisions
of paragraph 7, the applicant shall be entitled to apply on the same
papers, duly amplified if necessary and on notice to the fourth respondent,
for an order uplifting the suspension of the sentence and for enforcement
of the fine, alternatively, for a warrant of arrest to be issued for such
respondent’s committal.
9. The second and third respondents, on the one hand, and the fourth
respondent, on the other, shall jointly and severally pay the applicant’s
costs incurred in this application, including the costs of the proceedings on
24 March 2025, on the scale as between attorney and client.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. The applicant1 seeks an order declaring the respondents to be in contempt of
court. As things go, there are quirks to the application.
2. Only the second and third respondents oppose the application. The applicant
was given leave 2 to serve a copy of the application on the fourth respondent
by way of substituted servi ce in the form of email and WhatsApp. Despite
service as authorised, the fourth respondent has not opposed the application.
3. The applicant has sought condonation of the late delivery of her replying
affidavit. The grant of condonation was not opposed, and the applicant has
set out a reasonable explanation for the delay , which was occasioned by the
death of the original applicant and the substitution of the executor of her
estate as applicant. Condonation is accordingly granted.
4. In Secretary, Judicial Com mission of Inquiry into Allegations of State
Capture v Zuma,3 the Constitutional Court held that:
“As set out by the Supreme Court of Appeal in Fakie, and approved by this court
in Pheko II, it is trite that an applicant who alleges contempt of court must establish
that (a) an order was granted against the alleged contemnor; (b) the alleged
contemnor was served with the order or had knowledge of it; and (c) the alleged
contemnor failed to comply with the order. Once these elements are established,
wilfulness and mala fides are presumed and the respondent bears an evidentiary
burden to establish a reasonable doubt. Should the respondent fail to discharge this
burden, contempt will have been established.”
5. Whether these requirements have been satisfied in the present case is
discussed below.
The orders upon which this application relies
1 The original applicant, Mrs Conradie, has passed away since the institution of the application,
and her estate is represented by the duly appointed executrix.
2 By way of an order granted on 24 March 2025.
3 2021 (5) SA 327 (CC) para 37.
6. On 17 August 2019 an order (“the 2019 order”)4 was granted against the
fourth respondent, in terms of which he was directed to furnish the applicant5
with a final and complete mobile application known as the Bumbledings
educational game (including various specified components thereof), which
the fourth respondent had been commissioned to develop for the applicant,
through the first respondent. The applicant and the first respondent,
represented by the third respondent, had concluded a written agreement in
this respect in November 2017.
7. The components to be furnished by the fourth respondent under the 2019
order included:
7.1 Software and programs used in and to develop the application.
7.2 The signed APKs and source codes of the application.
7.3 All audio, graphics, and voice audio and confirmation of the HTML.
7.4 Code for the website designed and/or developed by the first
respondent and/or the fourth respondent in relation to the
application.
7.5 The application's unity file in TXT format.
7.6 All security certificates, licences, and keys relevant to the
application.
7.7 Transfer of the domain hyperlink https://b[...] to the applicant’s host
at h[...].
4 The Honourable Justice Savage presiding.
5 Mrs Conradie, the original applicant, was a teacher by profession who came up with the idea
for the game.
7.8 Transfer of any and all translated versions of the application in
respect of which the following are included:
7.8.1 Software and programs used in and to develop the
various translated versions of the application.
7.8.2 The signed APKs and source codes of the various
translated versions of the application.
7.9 The unity file, in TXT format, of the various translated versions of
the application.
7.10 All security certificates, licences, and keys relevant to the various
translated versions of the application.
8. The order had been sought against the both the first and the fourth
respondents but, because the first respondent opposed the application, the
matter as between the applicant and the first respondent was referred to the
opposed motion roll for argument. The fourth respondent had failed to
oppose, and the 2019 order was thus granted against him by default.
9. On 18 February 2020,6 following argument of the opposed application, an
order in similar terms was granted against the first respondent (“the 2020
order”). The order was granted against the first respondent company, and
directed the company inter alia to furnish the applicant with the final and
complete version of the Bumbledings application which the first respondent
had contracted to design and provide to the applicant.
10. The applicant now applies to hold the first to third respondents in contempt of
the 2020 order. The applicant alleges that the first respondent has failed to
6 The Honourable Justice Slingers presiding. Judgment was in fact delivered on 30 March
2020 but the order on rec ord is dated 18 February 2020, which was the date of the hearing.
There was no confusion between the parties as to the existence of the order upon which the
applicant relies, and I therefore continue to refer to the order – as the parties do – as the 18
February 2020 order.
comply with the 2020 order, and the fourth respondent failed to comply with
the 2019 order. She cites the second and third respondents in this contempt
application, despite the fact that neither of them was party to the proceedings
which led to the grant of the orders, and further despite the fact that no formal
application for their joinder to the proceedings was brought. It is common
cause that they never consented to their joinder. The applicant cites the
second and third respondents on the basis that they were the directors of the
first respondent when the 2020 order was granted, and on the basis that they
were responsible - through the first respondent - to ensure compliance with
the 2020 order.
11. That all of the components listed in the orders have not been provided
appears from expert evidence proffered by the applicant, which stands
undisputed on the papers. Although the fourth respondent did provide the
applicant with some items, those were defective in various ways, and the
applicant is still not in possession of a final and usable programme, even
though a fully functional programme does exist, having been launched for
sale in the Google Paly Store by the first respondent itself.
12. What, then, is the position of each of the respondents in these proceedings?
The fourth respondent’s position
13. The fourth respondent has again not opposed the application . It is clear from
the papers that he has knowledge of the 2019 order , and the applicant has
been in email communication with him over the past years since the grant of
the order regarding his attempts at compliance.
14. There is no explanation for his non-compliance with the terms thereof, and no
evidence to dislodge the presumption of wilfulness and mala fides. The relief
sought stands to be granted against him.
The first respondent has been deregistered
15. A hurdle in the applicant’s part is the fact that the first respondent does not
exist anymore. It is clear from the company information attached to both the
founding and answering affidavits in these proceedings that the first
respondent was finally deregistered during January 2024, prior to the
institution of this contempt application. The deregistration occurred because
the required annual statements had not been filed.
16. It is by now trite that once a company is deregistered, it loses its legal status
as of the date of its removal from the companies register. Section 83(1) of
the Companies Act 71 of 2008 provides that (save for an exception irrelevant
to these proceedings) a company “is dissolved as of the date its name is
removed from the companies register ..”. Its removal has the result that it can
no longer operate in its own name, and it does not have the legal and
contractual capacity to enter into any binding transactions because it is no
longer recognized as a juristic person.7
17. Likewise, claims by creditors of a deregistered company for debts owed to
them will no longer be enforceable against the company because the
deregistered company does not have legal personality. That essentially
means that such deregistered company can no longer litigate or be litigated
against, and all the assets within the company (in the case where there were
still assets held within the company at the time of its deregistration) are
declared bona vacantia, that is, forfeited to the State.
18. As the court held in Absa Bank Ltd v Companies and Intellectual Property
Commission of South Africa and others:8 " … nothing done by the company
and no action taken against the company during the period of dissolution is of
any effect".
19. The applicant has not applied for the reinstatement of the first respondent’s
registration in accordance with the relevant provisions of section 82 of the
7 Technologies Acceptances Receivables Pty (Ltd) and another v Thavalerie Travel CC and
7 Technologies Acceptances Receivables Pty (Ltd) and another v Thavalerie Travel CC and
another [2025] ZAGPJHC 573 (10 June 2025) footnote 2.
8 2013 (4) SA 194 (WCC) para 61.
Companies Act, or for an order declaring its dissolution void under section 83
of the Companies Act.9 In these circumstances, the applicant cannot obtain
relief against the first respondent.
The second and third respondents’ position
20. The second hurdles facing the applicant entails the roles of the second and
third respondents in the saga set out in the papers.
21. As indicated, the second and third respondents were not party to the
proceedings resulting in either the 2019 or the 2020 order, and no other order
was made against either of them. The applicant did not seek formally to join
these respondents to this application – they were merely cited. In the
ordinary course, the issue by the applicant of her contempt application under
the same case number as the main application which gave rise to the order
would mean that the joinder of the second and third respondents for the
purposes of enforcing the order was procedurally necessary.
22. The applicant says that she cited the second and third respondent because,
in terms of section 83(2) of the Companies Act, the removal of a company’s
name from the companies register “does not affect the liability of any former
director or shareholder of the company or any other person in respect of any
act or omission that took place before the company was removed from the
register”.
23. In Specitrim (Pty) Ltd and others v City of Johannesburg Metropolitan
Municipality and another10 one of the respondents raised an objection of non-
joinder in a contempt application. The court held as follows:
"In casu, there is nothing on the papers which indicates that before the service of the
Contempt Application upon the Second Respondent, Brink, he was served with the
Order personally, or that he was informed in his personal capacity, of the case he
9 See the discussion in Absa Bank Ltd supra paras 36-37; and 43-53.
10 2024 JDR 3967 (GJ) para 38. My emphasis.
was to face. These facts … show, in my view, that the objection of non-joinder by the
Respondents is not a purely idle or technical one taken simply to cause delays but
rather from a legitimate concern regarding the rights of the Second Respondent,
Brink. I find therefore, that the point in limine has merit and is thus upheld."
24. In Le Hanie and others v Glasson and others11 the Supreme Court of Appeal
(SCA}, also in the context of a contempt application, held as follows:
“[34] It bears repeating that the court order was granted against the HOA and not the
appellants herein, who are the individual directors of the HOA. None of the
appellants were cited in the main application. The respondents erroneously assumed
that, as directors of the HOA, against whom the court order had been granted, they
could simply visit contempt upon the appellants.
[35] The high court failed to appreciate the distinction between the appellants and
the HOA, as it was constituted in 2015. By conflating the HOA with the individual
directors in seeking the contempt order, the respondents and the high court failed to
consider the position of the appellants who were not in office in 2015. or at the time
the court order was granted.
[36] Other than Ms Le Hanie, who, like the other directors, was not in office at the
time the court order was granted, the other appellants are not employed by the HOA
and are not involved in the day-to-day activities of the Estate. As was held in City of
Tshwane Metropolitan Municipality v Beukes, a court will not hold a party
responsible for the execution of a court order where that party was not cited in the
proceedings, or against whom the order was not granted, unless there is a factual or
legal basis to do so. There was no such basis in the present case.
[37] In Meadow Glen Home Owners Association v City of Tshwane City Metropolitan
Municipality, this Court held that:
'…there is no basis in our law for orders for contempt of court to be made against
'…there is no basis in our law for orders for contempt of court to be made against
officials of public bodies, nominated or deployed for that purpose, who are not
themselves personally responsible for the wilful default in complying with a court
order that lies at the heart of contempt proceedings.'
. . .
11 2022 JDR 0981 (SCA) paras 34-38. My emphasis.
However, it must be clear beyond reasonable doubt that the official in question is the
person who has wilfully and with knowledge of the court order failed to comply with
its terms. Contempt of court is too serious a matter for it to be visited on officials,
particularly lesser officials, for breaches of court orders by public bodies for which
they are not personally responsible'.
[38] This principle must apply equally to directors of an HOA, more particularly where
the court order was against the HOA and not the directors individually.”
25. The matter does not end there. The SCA in Le Hanie 12 discussed the
principles underlying contempt of court, and emphasized that a court must be
satisfied beyond a reasonable doubt of a respondent’s contemptuous
conduct:
“[30] In Matjhabeng, the Constitutional Court summed up the position in regard to
the standard of proof required, as follows:
'Summing up, on a reading of Fakie, Pheko II, and Burchell, I am of the view
that the standard of proof must be applied in accordance with the purpose
sought to be achieved, differently put, the consequences of the various
remedies. As I understand it, the maintenance of a distinction does have a
practical significance: the civil contempt remedies of committal or a fine hav e
material consequences on an individual's freedom and security of the person.
However, it is necessary in some instances because disregard of a court order
not only deprives the other party of the benefit of the order but also impairs the
effective admini stration of justice. There, the criminal standard of proof –
beyond reasonable doubt – applies always. A fitting example of this is Fakie.
On the other hand, there are civil contempt remedies – for example,
declaratory relief, mandamus, or a structural int erdict – that do not have the
consequence of depriving an individual of their right to freedom and security of
the person. A fitting example of this is Burchell. Here, and I stress, the civil
the person. A fitting example of this is Burchell. Here, and I stress, the civil
standard of proof – a balance of probabilities – applies.'
[31] In dealing with the requirement of a deliberate and mala fide non-compliance
with an order, to found a contempt order, Cameron JA, in Fakie, stated that:
'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
12 Le Hanie supra paras 30-31. My emphasis.
genuinely, albeit mistakenly, believe him or herself entitled to act in the way
claimed to constitute the contempt. In such a case, goo d 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).’”
26. Apart from the joinder issue, there fore, the question arises whether a
sufficient factual or legal basis has been shown to hold the second and third
respondents in contempt, as the applicant attempts to do. Material and wilful
non-compliance with the 2020 order must be shown:13
“[15] A material failure to comply with the order has to be shown. In Consolidated
Fish Distributors (Pty} Ltd v Zive 1968 (2) SA 517 (C) at 522 this was applied:
" … applicant for an attachment had to show a wilful and material failure to comply
with the reasonable construction of the order. The requirement of materiality is
hardly ever mentioned in the cases, however, probably for the reason that in 99 per
cent of these cases the whole order was disobeyed, which is obviously a 'material'
non-compliance. It is reasonable to suggest that where most of the order has been
complied with and the non -compliance is in respect of some minor matter only, the
Court would take the substantial compliance into account, and would not commit for
the minor non-compliance."
…
[17] In order for a person to be found guilty of contempt of court, the disobedience
must not only be wilful, but also ma la fide. See Clement v Clement 1961 (3) SA
861 (T) at 866A.”
27. As to the objection to being brought to court to face the conte mpt application,
I think that the second and third respondents’ position in the present matter is
different from those of the respondents in Specitrim and Le Hanie . In
Specitrim the court was not satisfied that the municipal manager had any
knowledge of the application and the relief being claimed against him. It was
knowledge of the application and the relief being claimed against him. It was
on that basis that the objection to the joinder was upheld. In Le Hanie, Ms Le
Hanie, like the other directors, was not in office at the time the court order
was granted, and the other appel lants were not employed by or involved in
13 Khepeng and another v Maseko and another [2023] ZAFSHC 78 (13 March 2023) para s 15
and 17.
the day-to -day affairs of the relevant organisation.
28. In the present matter, the second and third respondents , who are married to
each other, were at all relevant times the first respondent’s life -blood. They
were the force behind the opposition to the grant of the 202 0 order against
the first respondent. They instructed attorneys on the first respondent’s
behalf for the purposes of the litigation. The third respondent was the
deponent to the first respondent’s answering affidavit, describing himself as
the first respondent’s director.
29. The grant of the 2020 order is not in dispute, and it is clear on a consideration
of the papers as a whole that the second and third respondents had
knowledge of the order and of its provisions. In fact, although they contend
that the order had never formally been served upon them, they do not deny
having knowledge thereof – they cannot, because they proceed to set out in
their answering affidavit the measures they have taken to e nsure compliance
with its terms. (A copy of the court order was, incidentally, attached to a
warrant of execution that was served on the third respondent personally prior
to the institution of this contempt application.)
30. The third respondent was copied i n to all of the applicant’s email
communications with the fourth respondent over the years. After the grant of
the 2020 order, the applicant’s attorney was in contact with the second
respondent for purposes of taxation of the costs of the main application . The
second respondent communicated with her costs consultant and the
applicant correspondent attorneys to accept an offer in relation to costs,
pursuant to which an allocatur was made.
31. The second and third respondents’ involvement in this matter cannot come as
any surprise to them. They were personally cited in this application, which
was duly served upon them. They were afforded the opportunity of
advancing reasons why they should not be held in contempt of court, and
advancing reasons why they should not be held in contempt of court, and
they have made use of that opport unity. In the premises, I do not regard the
absence of a formal joinder application in relation to them as fatal to the
applicant’s case against them.14
32. Is there a factual or legal basis upon which to hold the second and third
respondents (or, the second or third respondents) in contempt?
33. The respondents rely on s ection 77 of the Companies Act , which deals with
the “Liability of directors and prescribed officers ”. Section 77(7) provides as
follows:
“(7) In relation to the proceedings to recover any loss , damages or costs for
which a person is or may be held liable in terms of this section-
(a) the Prescription Act, 1969 … does not apply;
(b) subject to paragraph (c), such proceedings may not be commenced
more than three years after the act or omissio n that gave rise to that
liability; and
(c) the court may, on good cause shown, extend the period referred to in
paragraph (b) regardless of whether-
(i) such period has expired or not; or
(ii) the act or omission that resulted in the loss, damages or cost s
contemplated in this section, occurred prior to the
promulgation of the Companies Second Amendment Act,
2024 … .”
34. This application was brought more than three years after the grant of the
2020 order.
35. In terms of section 77(9) of the Companies Act:
“(9) In any proceedings against a director, other than for wilful misconduct or
wilful breach of trust, the court may relieve the director, either wholly or
partly, from any liability set out in this section, on any terms the court
14 See Wagg and another v City of Johannesburg Metropolitan Municipality and another
(Application for Leave to Appeal) [2025] ZAGPJHC 199 (28 February 2025) paras 14 -37.
After discussing various authorities the Court concludes: “[ 35] The authorities referred to and
relied upon by the respondents do not support the contention that in the present instance, a
formal joinder in terms of Rule 10 had to be effected and that the failure to have done so
should have been fatal to the contempt applications.”
considers just if it appears to the court that-
(a) the director is or may be liable, but has acted honestly and
reasonably; or
(b) having regard to all the circumstances of the case, including those
connected with the appointment of the director, it would be fair to
excuse the director.”
36. Section 77 aims to regulate a director’s liability towards the company itself in
the context of the instances set out in the section , and not towards third
parties such as the applicant. The section codifies the common-law liabilities
of directors, including alternate directors, prescribed officers, audit committee
members, and board committee members, and consolidates other sections of
the Companies Act that hold directors and prescribed officers personally
liable for company losses.15 As such, the respondents’ reliance on section 77
is misplaced in the present context.
37. The applicant relies on section 83 of the Companies Act. As indicated,
section 83(2) provides that deregistration “does not affect the liability of any
former director or shareholder of the company or any other person in respect
of any act or omission that took place before the company was removed from
the register”.
38. Section 83(3) in turn provides that any liability contemplated in section 83(2)
continues and may be enforced as if the company had not been removed
from the register. Whether or not the second and third respondents allowed
the company to be deregistered by design, they remain responsible to ensure
that the court order be complied with.
39. The first respondent – prior to its deregistration – could only function through
its directors. It is common cause between the parties that the second
respondent was at all relevant times reflected in the relevant CIPC records as
the first respondent’s director, while the third respondent was not. It appears,
15 See the discussion on section 77 of the Companies Act in Delport (ed.) Henochsberg on the
Companies Act 71 of 2008 (LexisNexis, looseleaf).
however, that the third respondent has since the inception of the first
respondent’s involvement with the applicant undertaken the role of director.
For example, in email messages to the applicant the second respondent
indicated that the applicant had to deal with the third respondent, “as he is the
director” of the first respondent. The third respondent in turn indicated that all
communications should be addressed to him. The third respondent deposed
to the first respondent’s answering affidavit in the main application, describing
himself as its director. It was the third respondent who appeared at the
taxation of the costs order against the first respondent in the main application.
40. A de facto director is a person who claims to act and purports to act as a
director without having been so appointed either validly or at all. On the
particular facts of this matter the third respondent was a de facto director.
Apart from being held out as the first respondent’s director, he in fact
participated in the running of the business of the first respondent on an equal
footing with the second respondent, and not in a subordinate role.16 This is
not surprising because it appears that the second and third respondents were
the only persons involved in managing the first respondent’s business.
Without them the first respondent would exist in name only, and would not
have been able to conducts its business, including the conclusion of the
agreement with the applicant.
41. In these circumstances, the third respondent, together with the second
respondent, was liable to ensure the first respondent’s compliance with the
2020 order, and there is a sufficient “factual or legal basis” (in the words of Le
Hanie) upon which to hold them in contempt should the presumption in
relation to wilfulness and mala fides remain intact in relation to the first
respondent’s failure to comply with the 2020 order.
42. In their answering papers the second and third respondents advance reasons
42. In their answering papers the second and third respondents advance reasons
for their contention that they h ave acted reasonably in relation to the first
respondent’s obligations under the 2020 order. They explain that it was the
16 See Hassim et al Contemporary Company Law (2ed, Juta) at p 408.
fourth respondent who was in a position to comply with the 2020 order, as he
did the work, which had been subcontracted to him. The first respondent
complied with the order i nsofar as it was capable to do so - it did not have all
of the components listed in the court order in its possession , but handed over
what it did have . The second and third respondent did not interfere with the
execution of the fourth respondent’s work, and they are not in a position to
remedy his non-compliance with the 2020 order.
43. The applicant nevertheless argues that the second and third respondents do
not set out the steps they have taken to ensure the first respondent’s
compliance with the 2020 order . Rather, t hey lay the b urden of complying
entirely at the fourth respondent’s door. There is merit in th e applicant’s
submission. Although t he respondents’ version, namely that the first
respondent was not in possession of the complete and functional programme
at the time when the main application was brought , is borne out by the
evidence that appears from the main application , one must not lose sight of
fact that the 2020 order was not one merely compelling the first respondent to
obtain the full programme from the fourth respondent and handing it over to
the applicant.
44. On the contrary, t he basis upon which the 2020 order was granted was that
the first respondent itself had failed to fulfil its obligations under the
agreement that it had concluded with the applicant. In the judgment granting
the 2020 order, the court expressly held that, despite subcontracting the work
to the fourth respondent, the first respondent remained liable to the applicant
for delivery of such work. Such files as had been handed over by the first
respondent to the applicant did, by the first respondent’s own admission, not
serve to fulfil its contractual obligations towards the applicant. 17 This is
despite the fact that the applican t had performed her obligations under the
despite the fact that the applican t had performed her obligations under the
agreement, and had in fact overpaid the first respondent. What the 2020
order thus entailed was the delivery by the first respondent to the applicant of
a complete and functional programme irrespective of where th e components
17 Unreported judgment (per Slingers J) paras10 and 27.
therefor came from. The first respondent could do so by way of co -operation
from the fourth respondent or, if it encountered no co -operation, by sourcing
the components itself. What it could not do was sit back and wait for the
fourth respon dent to perform under the 2019 order, and hold such
performance out as fulfilment of the first respondent’s obligations under the
2020 order.
45. The second and third respondents should not be allowed to rely on the
deregistration of the first respondent to e scape the latter’s liabilities towards
the applicant under the 2020 order. There is, incidentally, no explanation in
the answering papers as to why the first respondent’s deregistration was
allowed to occur despite its continued non -compliance with the te rms of the
2020 order. One forms the impression that the second and third respondents
allowed the first respondent to slip away so as to avoid having to fulfil its
obligations.
46. Therefore, even accepting the second and third respondents’ version on the
basis of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 18 such
version does not address the real issue, namely the first respondent’s
fulfilment of its own obligations towards the applica nt as directed under the
2020 order. The answering affidavit is conspicuously silent in this respect
(instead, simply deflecting the liability onto the fourth respondent), and does
not serve to displace the presumption of wilfulness and mala fides that exists
in the context of this application.
47. In the premises, I am satisfied that the applicant has shown beyond a
reasonable doubt that the second and third respondents have wilfully
disregarded the 2020 order, and that they were mala fide in doing so.
Conclusion and costs
18 1984 (3) SA 623 (A) at 634G-635C. The applicant seeks final relief on motion.
48. It follows that the relief sought should be granted against the second, third,
and fourth respondents.
49. There is no reason for costs not to follow the even t. A c osts order on the
scale as between attorney and client is extraordinary and usually reserved for
cases where the court finds that the ci rcumstances warrant it showing its
displeasure with the conduct of a litigant. 19 Given the nonchalance displayed
by the respondents towards their obligations under the respective orders ,
such a costs order is apposite in the present matter.
50. In terms of th e order granted in March 2025 authorising substituted service
and postponing the application for hearing on the opposed motion roll, the
costs of that appearance (effectively of all costs incurred in relation to Part A
of the notice of motion) would be costs in the cause.
Order
51. In the premises it is ordered as follows:
10. The late delivery of the applicant’s replying affidavit is condoned.
11. The application is dismissed as against the first respondent.
12. The second and third respondents are found to be in c ontempt of the
court order dated 18 February 2020, granted under case number
11348/2019.
13. The second and third respondents are each sentenced to payment of a
fine of R1 5 000,00 (fifteen thousand rand) , alternatively, to 1 (one)
month’s imprisonment, which sentence is suspended for a period of 24
months on condition that the second and third respondents ensure
compliance with the first respondent’s obligations under the court order
19 Tjiroze v Appeal Board of the Financial Services [2020] ZACC 18 (21 July 2020) para 27.
dated 18 February 2020 within this period.
14. In the event of the second and third respondents failing to comply with the
provisions of paragraph 4, the applicant shall be entitled to apply on the
same papers, duly amplified if necessary and on notice to the second and
third respondents, for an order uplifting the suspension of the s entence
and for enforcement of the fine, alternatively, for a warrant of arrest to be
issued for such respondents’ committal.
15. The fourth respondent is found to be in contempt of the court order dated
17 August 2019, granted under case number 11348/2019.
16. The fourth respondent is sentenced to payment of a fine of R15 000,00
(fifteen thousand rand), alternatively, to 1 (one) month’s imprisonment,
which sentence is suspended for a period of 24 months on condition that
the fourth respondent comply with his ob ligations under the court order
dated 17 August 2019 within this period.
17. In the event of the fourth respondent failing to comply with the provisions
of paragraph 7, the applicant shall be entitled to apply on the same
papers, duly amplified if necessary and on notice to the fourth respondent,
for an order uplifting the suspension of the sentence and for enforcement
of the fine, alternatively, for a warrant of arrest to be issued for such
respondent’s committal.
18. The second and third respondents, on the on e hand, and the fourth
respondent, on the other, shall jointly and severally pay the applicant’s
costs incurred in this application, including the costs of the proceedings on
24 March 2025, on the scale as between attorney and client.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr A. Sander
Instructed by: Muller Gonsior Inc. Attorneys
For the second and third respondents: Mr J-H Gous
Instructed by: CDC Law Inc. Attorneys
No appearance for the fourth respondent