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LABUSCHAGNE J
[1] On 22 January 2026 I granted an order in the urgent court in favour of the
applicant, the operative part of which reads:
“2. Pending the finalisation of the relief sought in Part B of the application,
as well as Part B of the application under case number B68 34/2025,
the first respondent is ordered to forthwith:
2.1 Issue the applicant with a Fidelity Fund Certificate for Pretoria
North East High and Lower Courts; and
2.2 Remove any reference on the first respondent’s website to the
third respondent as the Sheriff for Pretoria North East High and
Lower Courts.
3. The first respondent is ordered to pay the costs of this application on
Scale C.”
[2] Due to non-compliance with paragraph [2] of the order, Mr Mphahlele brought
an application agains the Board for Sheriffs in which he seeks the following
relief on an urgent basis:
“2. It is declared that the first respondent is in contempt of paragraph [2]
of the order granted on 22 January 2026 by Labuschagne J under
case number 245823/2025 (“the order”).
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3. It is ordered that the first respondent pays a fine in the amount of
R100 000.00, which is wholly suspended on condition that the first
respondent complies with the order within one day of the date of this
order.
4. In the alternative to prayers 2 and 3 above, it is declared that:
4.1 The order is and remains valid and enforceable;
4.2 The operation and execution of the order is not suspended
pending the decision of any application for leave to appeal or
appeal in respect thereof; and
4.3 The first respondent remains obliged to comply with the order.
5. Adv Lethukhuthula Mark Mogan is joined in his personal capacity as
the fourth respondent.
6. The fourth respondent is ordered to ensure that the first respondent
complies with the order and this court order.
7. The applicant is authorised to approach the court for appropriate relief
on these papers, duly amplified, in the event that the order and this
court order are not complied with by the first and/or fourth
respondents.
8. Pending the final determination of the relief sought in Part B of this
application as well as Part B of the application under case number
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B6834/2025, the second respondent’s purported decision to remove
the applicant as the sheriff for Pretoria North East and Lower Courts
is suspended.
9. The first respondent is ordered to forthwith and unconditionally
withdraw annexure JM41A, JM41B, JM41C, JM41D and JM53 to the
founding affidavit by addressing correspondence in this regard to the
addressees of the said letters and the circular.
10. The first respondent is ordered to pay the costs of this application on
the scale as between attorney and client.
11. Further and/or alternative relief.”
[3] It bears noting that what the Acting Deputy Judge President refer red to me
was the contempt application , to be heard together with the application for
leave to appeal. When the matter was called on Monday, 16 February 2026,
neither the leave to appeal nor the contempt application was not ripe for
hearing and they stood down for simultaneous hearing on 20 February 2026.
[4] In light thereof that I directed that the application for leave to appeal and the
contempt application be heard simultaneously, the respondents in the
application for contempt did not deal with relief aimed at suspending the order
of the Minister removing Mr Mphahlele as Sheriff, as referred to in paragraph
8 of the notice of motion.
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[5] Paragraphs 8 and 9 of the notice of motion are not related to the primary relief,
which is based on contempt, but in effect constitute Part A of review
proceedings of the decision to remove Mr Mphahlele as Sheriff on 20
December 2025.
[6] It suffices to state that paragraphs 8 and 9 are not ripe for hearing before me
and, as indicated in open court, I will deal with the application pertaining to
contempt of court in this judgment.
[7] It follows that paragraphs 1 (insofar as it relates to paragraphs 8 and 9) as well
as paragraphs 8 and 9 of the notice of motio n are postponed sine die. The
applicant may enrol these prayers as soon as the papers are ready for
argument.
[8] When the matter was argued on 20 February 2026, it was apparent that both
Mr Mphahlele and the Board of Sheriffs were aware of the decision of the
Minister to remove Mr Mphahlele as sheriff for Lep halale in terms of a letter
dated 20 December 2025.
[9] I quote this letter in full. It is dated 20 December 2025, is signed by the Minister
of Justice and Constitutional Development, and is directed to the applicant, Mr
Mphahlele. It reads:
“Dear Mr Mphahlele
Re: Decision on removal from office: Sheriff for Lephalale High and Lower
Courts
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I refer to your letter dated 02 December 2025 which serves as a response
to my notice of proposed suspension and/or removal from office issued on
21 November 2025.
I have noted your explicit statement that “it will accordingly not serve any
purpose to make written representations” regarding your proposed
suspension or removal. I accept this as a formal waiver of your right to
make further representations on this mat ter. Accordingly, I proceed to
make my final decision based on the facts at my disposal.
Your assertion that you have “resigned” to assume the position of sheriff for
Pretoria North East is founded on the fundamental misconception of the
legal status of that appointment. The offer of appointment extended to you
on 15 September 2025 was not absolute. It was subject to strict suspensive
conditions which had to be fulfilled before the appointment could vest.
Specifically, the appointment could vest. Specifically, the appointment
letter stated:
• That you “forthwith relinquish your permanent appointment for
Lephalale HL”; and
• That you “are in compliance for the necessary requirements to be
issued for the Fidelity Fund Certificate (“FFC”).
Our records demonstrate that you failed to fulfil these material conditions:
• You failed to relinquish for post at Lephalale “forthwith” (immediately).
Instead you retained the post for months, only attempting to tender a
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conditional resignation on 02 December 2025. This failure is sufficient
to render the suspensive condition …. [unclear].
• You are statutorily disqualified from holding a FFC in terms of section
33(1)(h) of the Sheriffs Act, 90 of 1986 (“the Act”) due to your previous
criminal conviction. Consequently, you cannot meet the conditions
regarding compliance with FFC requirements.
As these suspensive conditions were not met, the appointment for Pretoria
North East lapsed by operation of law and never came into legal effect. You
do not hold that office, and your attempt to use it as a basis for resignation
from Lephalale is legally incompetent. The South African Board for Sheriffs
has formally notified me that your FFC for Lephalale was cancelled on 24
November 2025.
Furthermore, my office has been provided with evidence that,
notwithstanding the fact that you hold no valid FFC for any jurisdiction, you
have continued to perform the statutory functions of the sheriff. This
includes the organising and advertising of sales in execution. I must remind
you that the performance of such functions without a valid FFC is a criminal
offence under section 30(1)(a) as read with section 60(1)(a) of the Act. This
continued disregard for the law constitutes an aggravating factor and serves
as definitive proof that you are not a fit and prop er person to occupy the
office of a sheriff, an office that demands the highest standard of integrity
and legal compliance.
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In the circumstances, I am satisfied that grounds exist for your removal. I
hereby remove you from the Office of Sheriff for Lephalale High and Lower
Courts with immediate effect, in terms of section 4(3)(a) of the Sheriffs Act.
Since you were appointed to the South African Board for Sheriffs in terms
of section 9(2)(a) of the Act (representing the sheriffs ’ profession), please
be advised that your removal from the Office of Sheriff be due immediately
cease to hold office as a board member in terms of section 12(1)(d) of the
Act.
You are directed to surrender all office files, trust account records and court
processes to the court manager and the board’s representative
immediately.
Yours sincerely
Ms Mmamoloko Kubayi, MP
Minister of Justice and Constitutional Development
20 December 2025”
[10] The Board for Sheriffs was aware of this notice of removal at the time that the
main application was argued before this court in January 2026 but failed to
disclose it. This applies equally to the applicant. However, the letter only
surfaced after the applicant had already initiated the application that gave rise
to the judgment on 22 January 2026.
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[11] The Board for Sheriffs, was obliged to take steps to clarify its legal position.
This required it to apply to court for a declaration of its rights and obligations.
The correspondence indicated that the Board for Sheriffs was aware of this
obligation and in fact advised the attorneys for the applicant that it intended
doing so. It later recanted, de scribing such exercise as a waste of State
resources.
[12] In Circular 2 of 2026 the South African Board for Sheriffs, on 09 February 2026
circulated the following to the Judge President, the Registrar of its Division,
Clerks of the Magistrates’ Court, Pretoria and various other related entities the
following pertaining to the judgment:
“With specific reference to the judgment of the Gauteng Division of the High
Court (per Labuschagne J) delivered on 22 January 2026 which orders the
Board to issue Mr JT Mphahlele with a Fidelity Fund Certificate, the Board
confirms that this judgment is subject to leave to appeal. Furthermore, the
Board has received legal advice that Mr JT Mphahlele’s removal renders
the said judgment moot and unenforceable as the Board cannot issue a
FFC to a person that has been removed from the Office of Sheriff.”
[13] From correspondence of the Board of Sheriffs it is however apparent that it
was aware that it should have challenged the validity of the court order for the
very reasons it advances in the quoted paragraph. It has failed to do so. This
application is the result of that failure.
[14] One must bear in mind that sheriffs are an execut ory arm of the State in the
enforcement of court orders. Organs of State are obliged to enhance the
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dignity of the courts by complying with court orders. This applies particularly
to the Board of Sheriffs, who supervises a profession whose primary obligation
is to give effect to court orders. To sh irk its constitutional obligation by
describing an approach to court as a waste of state resources is deeply
concerning.
[15] It is demonstrative of a Board that has formed its own view of the binding effect
of the court order that I granted on 22 January 2026 and has decided to ignore
it for a variety of reasons, contending that it is moot and not legally
competent.This equates to a contumacious disregard of a court order when
the obligation to challenge it is apparent.
[16] The fact of the removal of Mr Mphahlele , as is evident from the letter of 20
December 2025 on grounds that include the fact that he is not fit and proper
for office, stands as an administrative action until suspended and/or set
aside.The legality and rationality of the removal decision, will have to be
decided once the papers are complete.
[17] For the benefit of the Board for Sheriffs the following needs to be stated
categorically:
17.1 An order of court against the Board for Sheriffs is binding in terms of
section 165(5) of the Constitution, unless it is challenged by the Board.
This is an incident of both the Constitution and the rule of law.
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17.2 The supine response of the Board for Sheriffs in this matter, to the
validity of the court order, is in breach of its constitutional obligation to
comply with the court order or to challenge it.
[18] There are three requirements for contempt of court proceedings:
18.1 The first is the existence of a court order.
18.2 The second is knowledge of the part of the respondent of such court
order.
18.3 The third is wilful disobedience
[19] The first two elements are established in these proceedings.
[20] The difficulty in this matter lies with the establishment of wi lfulness in not
complying with the court order.
[21] There are two considerations relevant to the question of wilfulness:
21.1 The first is that the Board for Sheriffs believes that the application for
leave to appeal has suspended the court order in question. Mr
Mphahlele counters that the order in question is an interim order which
is not final in effect and is not suspended (section 18 (2) of the
Superior Courts Act, 10 of 2013 ). I do not deem it necessary to
resolve this issue as the mere fact that the Board for Sheriffs believes
that the order was suspended by the application for leave to appeal
(rightly or wrongly), indicat es that non -compliance is not per se
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wilful.This is a conclusion to which I come reluctantly, as legal advise
that is patently in conflict with sec 165(5) of the Constitution cannot in
principle be reasonable.
21.2 The second is the so-called mootness of the court order in light thereof
that the Minister had removed Mr Mphahlele as sheriff. The subjective
belief that his removal by the Minister rendered the court order moot,
means that non -compliance for the court order does not rise to the
level of wilfulness.
21.3 In the premises the application must fail. That is, however, not the end
of the matter.
COSTS
[22] The Board of Sheriffs is obliged to act constitutionally when it comes to
compliance with court orders. As stated above, its conduct in these
proceedings falls short of what is expected of it.
[23] Had the Board for Sheriffs acted in terms of its belief that the court order was
moot and/or not legally competent, by challenging the court order head -on in
court proceedings, this contempt application would not have been necessary.
[24] The Board for Sheriffs cannot shirk its constitutional obligation to comply with
court orders pertaining to the Board, unless they are challenged, by citing legal
advice. The issue is governed by the Constitution in section 165(5) and the
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COUNSEL FOR RESPONDENT : Adv Joseph SC
INSTRUCTED BY : Herold Gie Attorneys