SAFLII Note: Certain personal/private 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
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: M24/2018
In the matter between:
BOSELE NATIONAL PROVIDENT FUND APPLICANT
and
DANIEL POONYANE TLHOLOE FIRST RESPONDENT
THE SHERIFF OF THE HIGH COURT SECOND RESPONDENT
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION THIRD RESPONDENT
STANDARD BANK OF SOUTH AFRICA FOURTH RESPONDENT
Coram: Masike AJ
Date Heard: 10 October 2025
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Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 11 MAY 2026 at 10h00.
Summary: Civil Procedure – Contempt of court proceedings – whether
requirements of contempt of court have been met - Interim Interdicts – whether
requirements for interim interdict have been met – costs legal principles
repeated.
JUDGMENT
MASIKE AJ
Introduction
[1] Before me is an application to set aside an enforcement award issued by
the third respondent in favor of the first respondent , for an order declaring the
first respondent is in contempt of the orders of the Honourable Court dated 1 2
April 2018 and 7 October 2021, for interdictory and further ancillary relief
against the first, second and fourth respondents.
[2] Bosele National Provident Fund (under curatorship), a duly registered
pension fund with registration number 12/8/37022, and its principal place of
business situated at 2 […] M[...] Street, Golfview, Mahikeng, (‘the applicant’)
instituted motion proceedings in this Court against the first, second, third and
fourth respondents in which the following relief is sought:
‘1. Setting the Enforcement of Award order, dated 16 November 2023, and issued
by the Third Respondent, aside;
2. declaring that the First Respondent is in contempt of the orders of the above
Honourable Court, dated 14 April 2018 and 7 October 2021 , respectively
under case number M24/2018;
3. Imposing a period of imprisonment, such as is deemed appropriate by this
Honourable Court, on the First Respondent, on conditions deemed appropriate
by this Honourable Court.
4. Interdicting and restraining the Fourth Respondent, from paying the amount of
R915 704.38 (Nine Hundred and Fifteen Thousand Seven Hundred and
Four Rands and Thirty -Eight Cents) over to the First Respondent and/or
Second Respondent and/or his agents and assigns; alternatively
5. where the amount of R915 704.38 (Nine Hundred and Fifteen Thousand
Seven Hundred and Four Rands and Thirty -Eight Cents) has been
transferred into a suspensive account, directing the Fouth Respondent to
transfer said amount of R915 704.38 (Nine Hundred and Fifteen Thousand
Seven Hundred and Four Rands and Thirty -Eight Cents) bank into the
Applicant’s bank account held by the Fourth Respondent; alternatively
6. where the aforesaid amount has been paid to the First Respondent and/or
Second Respondent directing the First and/or Second Respondent to repay the
amount of R915 704.38 (Nine Hundred and Fifteen Thousand Seven
Hundred and Four Rands and Thirty -Eight Cents) into the Applicant’s
bank account, held by the Fourth Respondent;
7. directing the First Respondent to pay the costs of this application on an
attorney and own client scale;
8. directing the Second, Third Respondent and Fourth Respondent to pay the
costs of this application, on an attorney and client scale, should they oppose
this application; and
9. Further and/or alternative relief.’
[4] The service of the application was effected on the first respondent, who
has opposed the application. Service was effected on the second and third
respondents on 8 February 2024 and 20 February 2024, respectively. This is
respondents on 8 February 2024 and 20 February 2024, respectively. This is
evinced by the date stamp of the offices of the second and third respondents .
The second and third respondent s have not filed any opposing papers to this
application. On consideration of the papers that served before this Court, I could
not find a return of service or proof of service of the application on the fourth
respondent. However, on consideration of an email from Tshepo Masipa, an
employee of the fourth respondent to the attorneys of the applicant , dated 17
January 2024, the following was stated in paragraphs 3 and 4 of the email:
‘3. We understand that your client intends to approach court to have the notice of
attachment set aside.
4. SBSA does not wish to become embroiled in the dispute and will not oppose
such application made by your client provided no costs order are sought
against SBSA and no negative averments are made against SBSA.’
[5] No cost order has been sought against the fourth respondent , and on
consideration of the founding affidavit deposed to on behalf of the applicant, I
found no negative averments against the fourth respondent. In my view, the
fourth respondent appears to be aware of this application and has elected not to
oppose it.
Factual Background
[6] The first respondent in this application is Mr Daniel Poonyane Tlholoe, a
major male person, former employee of the applicant , with his last known
address 2[…] O[…] A[…] Crescent, Unit […], Mmabatho, North–West.
[7] The second respondent is the Sheriff of the High Court , Johannesburg
Central, Mr MT Mangaba, appointed in terms of s 2 of the Sheriff’s Act, 90 of
1996, as amended, (‘the Sheriff’s Act’), and cited in this application in his
official capacity as the sheriff performing functions assigned to him in terms of
s 3 of the Sheriff’s Act, these functions include execution of court orders with
his registered office at 2[…] H[…] Street, Johannesburg.
[8] The third respondent is the Commission for Conciliation, Mediation and
Arbitration (‘the CCMA’), a statutory body and juristic entity established in
terms of s 112 of the Labour Relations Act, 1995 (‘LRA’). For purposes of this
application, the third respondent’s principal place of business is situated at
CCMA House, 4[…] S[…] Street, Klerksdorp.
[9] The fourth respondent is Standard Bank of South Africa Limited, a public
company duly incorporated in terms of the company laws of the Republic of
South Africa and a duly registered credit provider in terms of the National
Credit Act 34 of 2005 (‘NCA’), with its head office situated at […] S[…] Street,
Johannesburg.
[10] The first respondent was appointed as the applicant's principal officer
until he was dismissed in April 2016 for alleged misconduct. On 7 June 2017,
the third respondent issued an arbitration award ordering that the first
respondent be reinstated as the applicant's principal officer and be compensated
in the amount of R915 704.38, payable no later than 15 July 2017. On 26 July
2017, the applicant launched review proceedings in the Labour Court of South
Africa, Johannesburg. In that application, the app licant sought to review the
arbitration award granted by the third respondent in favor of the first
respondent. It is contended in the founding affidavit deposed to by
Ntshengedzeni Anthony Michael Tshivase (‘Mr Tshivhase’) on behalf of the
applicant that the review application was issued under case number JR1392/17.
[11] The first respondent has dissociated himself from the application under
case number JR1392/17 but refers to a matter in the Labour Court under case
number JR1592/17. Mr Tshivhase , in the replying affidavit on behalf of the
applicant, has clarified this issue by asserting that the reference to case number
JR1392/17 was a ‘typo’; I understand this to mean a typing error , and the
correct case number is JR1592/17 . The first respondent vehemently denies
being served with the review application. It is the contention of the first
respondent that the review application was served at the wrong email address
rather than his.
[12] On 12 September 2017, the first respondent obtained a certification of the
arbitration award from the third respondent under s 143 of the LRA . The first
respondent made numerous attempts to enforce the arbitration award. On 8
February 2018, the applicant was placed under provisional curatorship. Mr
Malcom Campbell (‘Mr Campbell’) and Mr Tshivhase were appointed as
provisional curators. On 12 April 2018, Hendricks J (as he was then), placed the
applicant under final curatorship. The provisional appointment of Mr Campbell
and Mr Tshivhase was confirmed (‘the Hendricks order’) . In the papers before
this Court, reference is made to the Hendricks order being granted on 14 April
2018. This is a typographical error, as the order annexed to the papers states that
it was granted on 12 April 2017.
[13] So far as it relates to the Hendricks order, paragraph 5 of that order is
relevant to the application before this Court, it reads as follows:
‘5. THAT: Whilst the curatorship exists, all claims, actions, proceedings, the execution of
all writs, summonses and other processes against the Fund are stayed and may not be
instituted or proceeded with, without leave of the Court.’
The first respondent became aware of the Hendricks order and, on 1 February
2019, launched an application to enforce and/or execute the arbitration award
granted by the third respondent in his favor dated 7 June 2017 (‘the first
application for leave to enforce the arbitration award’). The first application for
leave to enforce the arbitration award was withdrawn on or about 15 March
2019.
[14] The first respondent relaunched the application to enforce and/or execute
the arbitration award granted by the third respondent in his favor dated 7 June
2017 (‘the second application for leave to enforce the arbitration award’). That
application was opposed and heard by Petersen J (as he then was) on 1 July
2021, and judgment was handed down on 7 October 2021 (‘the Petersen
judgment’). The application was dismissed. Petersen J (as he then was) said the
following in paragraphs 20 to 22 of his judgment:
‘[20] The applicant further calls on this Court to consider that the review application in the
Labour Court has lapsed. This Court is not vested with jurisdiction to make any
pronouncement in that regard. The applicant’s submissions in this regard lie to the
Labour Court where Rule 11 of the Labour Court Rules appears to have become
commonplace in complaints of this nature by aggrieved employees alleging that a
review has lapsed. That appears to be the correct and applicable manner to approach
the Labour Court rather than approach this Court at this stage
[21] Further, on a careful reading of the order of this Court on 12 April 2018, which
provides that “ Whilst the curator exists, all claims, actions, proceedings, the
execution of all writs, summonses and other processes against the Fund are stayed
and may not be instituted with, without leave of the court ”, the applicant is clearly not
precluded from defending the Review Application in the Labour Court in accordance
with the prescripts of the LRA and Rules of the Labour Court. The present application
in this Court is accordingly premature.
[22] However, it must be said that, the review application having been issued in 2017, no
cogent reasons are put forward for the inordinate delay in prosecuting the review to
finality. It does not avail the respondents simply to contend, even before this Court,
that the CCMA has to file its record, more than three years later. In Chillibish
that the CCMA has to file its record, more than three years later. In Chillibish
Communications (Pty) v Gericke and Others, Molahlehi J stated that:
“It seems to me that the unintended consequences of the introduction of the
provisions of section 143 Labour Relations Act in 2000, outweighs the
objective which the legislature sought to achieve. The provisions of section
143 are undermined by the delaying tactics of certain employers. The problem
does not in my view arise only at the stage of the writ of execution but at the
every beginning of the section 143 process itself. As I understand it the
purpose of section 143 was not only intended to expedite the enforcement of
arbitration awards but mainly to ensure that only genuine and legitimate
awards are enforced.”’ [Footnotes omitted]
[15] Mr Tshivhase contends that on 8 January 2024, he received an email from
Mr Campbell regarding the attachment and an attempt to withdraw R915 704.38
from the applicant's bank account. Several enquiries and attempts to obtain a
copy of the warrant authorising the attachment of the aforesaid amount were
made. Mr Tshivhase contends that he eventually received a copy of the
enforcement award order (‘the warrant’) on 17 January 2024. It is contended on
behalf of the applicant that from the examination of the warrant on 16
November 20 23, the first respondent wilfully acted in a manner which
contravenes the He ndricks order and the Petersen judgment respectively. The
first respondent, in his answering affidavit, confirms that on the basis of the
enforcement award order, the Sheriff executed against the applicant’s right, title
and interest the equivalent of his arbitration award in its Standard Bank of South
Africa account.
[16] The first respondent contends that he was validly entitled to proceed to
execute the enforcement award order against the applicant in terms of s 143 of
the LRA, that the Hendricks order and the Petersen judgment d o not
contemplate an absolute bar on the execution of writs, summonses and other
processes against the applicant, but provide that such are stayed and may not be
instituted or proceeded with, without leave of the court. The first respondent
goes on to contend that the filing of a s 145 review application in terms of the
LRA does not stay the LRA’s s 143 process unless an order in terms of s 145(3)
of the LRA has been granted by the Labour Court. It is contended further that
the sheriff and the fourth respondent were legally enjoined by s 42(1)(c) of the
Magistrate’s Act.
[17] Mr Tshivhase attempted to have the attachment released by the second
and fourth respondents by correspondence, detailing the shortcomings with the
warrant. Mr Tshivhase's correspondence to the second and fourth respondents
did not achieve the desired outcome. It is contended that whether the fourth
respondent has paid any monies to the second respondent is unknown to the
applicant; however, the fourth respondent has resolved to pay the monies over
to the second respondent should the second respondent s o demand. It is
contended by the first respondent that the amount of R915 704.38 has been
transferred to the fourth respondent’s suspense account following the execution.
[18] It is contended on behalf of the applicant that the imminent harm arising
from the attachment of the applicant's bank account is obvious. It is further
contended that the applicant, being a provident fund, was placed under
curatorship to protect the interests of vulnerable groups, and stands to lose a
substantial amount of money to the first respondent , who ultimately may not be
entitled to such monies because the arbitration award of the third respondent in
favor of the first respondent is under revie w. The applicant has further indicated
that the first respondent is unemployed and of pensionable age; there is a threat
that, should the monies be paid over to the first respondent, the applicant will
not be able to recover them should the Labour Court in the review application
set aside the arbitration award of the third respondent.
[19] The first respondent contends that he continues to suffer prejudice : the
arbitration award in his favour by the third respondent has been ignored by the
applicant, and he has been left out of employment and without income since his
dismissal by the applicant in 2016. It is further contended that the first
respondent did not receive his pension fund benefits. The first respondent
further contends that the applicant can institute an action against him for
damages using the usual remedies for recovering a debt, particularly given that
he has pension benefits that have not been encashed.
[20] It is not in dispute that the applicant has brought an interlocutory
application in the Labour Court in the matter under case number JR1 592/17,
which the first respondent has opposed. The first respondent contends further
that because he was not served with the review application, there is no review
application before the Labour Court , and that he has ascertained from the
registrar of the Labour Court that there is no record of a review application
under case number JR1592/2017 before the Labour Court , and as a result, he
proceeded with steps to enforce the award.
Legal Principles
[21] In S[…] v S[…] -H[…]1 Nicholls JA , writing for the court , said the
following:
‘The requirements for contempt of court are now trite. They are the existence of a court
order; the contemnor must have knowledge of the court order; there must be non -compliance
with the court order; and, the non compliance must have been wilful or male fides. Once the
first three elements have been shown, wilfulness and male fides will be presumed and the
evidentiary burden switches to the contemnor.’ [Footnotes omitted]
[22] Where committal is sought, the standard of proof in civil contempt
matters has to be the criminal standard 2. In those circumstances, wilfulness and
mala fides have to be shown beyond a reasonable doubt3.
Analysis
1 (Case no 771/21) [2023] ZASCA 49 (13 April 2023) para 19
2 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limited (Matjhabeng) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1)
SA 1 (CC) para 61.
3 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) (Pheko II) [2015] ZACC 10 para 35-36;
Fakie v CCII Systems (Pty) Ltd [2006] SCA 54 (RSA) (Fakie) para 19, 29 and 40
[23] It is a crime to disobey a court order unlawfully and intentionally .4
This type of contempt of court is part of a broader offence that can take many
forms, but the essence of which lies in violating the dignity, repute, or authority
of the court.5
[24] This Court is satisfied that the Hendricks order and the Petersen judgment
remain extant. The first respondent has not denied that he is aware of the
Hendricks order and the Petersen judgment. Paragraph 5 of the Hendricks order,
which I have quoted above, is written in unambiguous terms.
[25] The applicant was placed under final curatorship on 12 April 2018, and
when the first respondent caused the warrant to be issued and the second
respondent to execute it in November 2023, the first respondent was fully aware
of the existence of the Hendricks order. This Court is satisfied that the first three
elements of contempt of court have been established by the applicant.
Wilfulness and mala fides are presumed, and the evidentiary burden now shifts
to the first respondent to provide evidence raising a reasonable doubt as to
whether his non-compliance was wilful and mala fide.6
[26] The first respondent contends that when he established with the registrar
of the Labour Court that there was no review application before it, he executed
the warrant. I have difficulty with the contention. Curiously, the first respondent
has not attached to his answering affidavit any documentary proof that the
registrar of the Labour Court informed him that there is no review application
before the Labour Court . The first respondent did not take this Court into his
confidence and did not disclose the identity of the registrar of the Labour Court,
who informed him that there is no review application before it by the applicant ,
4 S v Beyers - 1968 (3) SA 70 (A)
5 Fakie para 6 and the authorities referred to therein
6 Pheko II para 36
he did not disclose when was th e registrar approached and when he states his
search of the Labour Court revealed no record/contents/evidence of the
application under case number JR1592/2017, he does not disclose when was
this search was conducted.
[27] It becomes curiouser that the first respondent contends he received
service of a condonation application under the same case number in December
2023. The first respondent is referring to case number JR1592/17 . My belief
that the first respondent is referring to the matter under case number JR1592/17
is fortified by the examination of the answering affidavit in the matter before
the Labour Court, which bears the case number JR1592/17, which the applicant
attached to its founding affidavit as an annexure , and the first respondent has
attached the same answering affidavit as an annexure to his answering affidavit
in the application before this Court. If there is no main review application, how
can there be an interlocutory application under the same case number
(JR1592/17)? The first respondent has confirmed that he has strenuously
opposed the interlocutory application, and it appears that the application is
pending before the Labour Court.
[28] The applicant contends that the application is for directives considering
the poor quality of the record under the review application, whereas the first
respondent contends that the application is for condonation with the non -
compliance by the applicant with Rule 7A(2)(b) of the Rules of the Labour
Court. What is not disputed is that the pending application in the Labour Court
concerns the applicant, the first respondent, and the third respondent. The
difficulty the first respondent faces is that the Hendricks order remains in effect.
The existence of the order is not dependent on the determination of the
application to review the arbitration award granted by the third respondent in
favor of the first respondent in the Labour Court . The Hendricks order remains
in force for so long as the applicant is under curatorship . It was incumbent on
the first respondent to bring an application for leave to execute the arbitration
award.
[29] Counsel for the first respondent submitted in his written heads of
argument that the first respondent has not deliberately defied the court order,
that the actions of the first respondent were brought about as a result of extreme
frustration arising from the applicants’ delay in finalising the review application
of the arbitration award. I am not persuaded by this line of argument. In the
Petersen judgement, Petersen J (as he then was) advised that the first respondent
to approach the Labour Court and bring an application under Rule 11 . In my
view, there was no impediment for the first respondent to bring an application
declaring that the applicant's review application had lapsed. Even if the first
respondent had successfully brought an application declaring that the review
application had lapsed, or even if it is true that there is no review application
before the Labour Court, that would not have changed the position ; the
moratorium against all claims, actions, proceedings, the execution of all writs,
summonses and other processes against the applicant remains in place until the
curatorship ceases to exist as per the Hendricks order. It would be incumbent on
the first respondent to bring an application for leave to execute the arbitration
award.
[30] It has been submitted in the alternative on behalf of the first respondent
that the stay in paragraph 5 of the Hendricks order may not apply retroactively
to awards already granted before the curatorship was imposed. There is no merit
to this submission . Paragraph 5 of the Hendricks order speaks to proceedings
which were instituted before the applicant was placed under final curatorship,
and proceedings which are pending or are to be instituted after the applicant was
placed under final curatorship. Any other interpretation of paragraph 5 of the
order would lead to absurd results. On this issue, I can do no better than to refer
to the Born Free Investments 247 (Pty) Ltd v Pierre Du Plessis Kriel NO (Born
Free Investments)7 judgment that counsel for the first respondent has referred to
in his heads of argument.
[31] In Born Free Investments , a matter involving an order similar to
paragraph 5 of the Hendricks order, Mokgohloa AJA (as she was then) at
paragraph 16 said the following:
‘To accept that failure to obtain leave of the court prior to instituting legal proceedings leads
to nullity would, in my view, lead to injustice. It would also lead to inconsistency, because
existing actions would be stayed, but an action instituted without prior leave would be
dismissed, which seems an extreme and unnecessary result. It would be contrary to s 34 of
the Constitution which provides that ‘everyone has the right to have any dispute that can be
resolved by the application of the law decided in a fair public hearing before a court’.
Suppose a creditor, oblivious to the moratorium, issued summons without obtaining the leave
of the court, it would mean that it would be precluded from proceeding with its claim because
its summons was a nullity for want of prior leave of the court. Such a construction, in my
view, would be unjust. It seems to me that a sensible interpretation of paragraph 6.2 is that an
action may not be instituted without the leave of the court, and where it has been instituted,
such action should be stayed until leave is obtained.’ (own emphasis)
[32] In my opinion, for as long as the applicant remains under curatorship, the
enforcement of the award of the third respondent in favor of the first respondent
is stayed until leave is obtained in the court to execute the award. Having
considered the facts of this application, I am of the view that the first respondent
failed to provide evidence raising a reasonable doubt as to whether his non-
compliance with the Hendricks order was not wilful and mala fide . I am
compliance with the Hendricks order was not wilful and mala fide . I am
satisfied that the first respondent is in contempt of the Hendricks order.
7 (1183/17) [2019] 21 ZASCA (26 March 2019)
[33] Relating to the Petersen judgment, in my view, the first respondent is not
in contempt of the Petersen judgment . The Petersen judgment did not require
the first respondent to perform any act or desist from performing any act. As I
have stated above, the Honourable Petersen J (as he then was) advised the first
respondent on what steps to take against the applicant in the Labour Court and
proceeded to dismiss the application brought by the first respondent on the basis
that the application was prematurely re-instated without exhausting his remedies
in the Labour Court in relation to the pending review application.8
[34] I now turn to the relief sought in the interdict. It is contended on behalf of
the first respondent that it is not clear if the interdict the applicant seeks is a
final interdict or an inter im interdict. In my view, the first respondent
understands that the interdict sought is an interim interdict. The first respondent ,
in his answering affidavit , when addressing the question of the interdictory
relief, refers to the Financial Institutions (Protection of Funds) Act, 2001 Act 28
of 2001 (‘Protection of Funds Act ’) in particular the first respondent states that
the relevant section of the Protection of Fund Act makes reference to staying the
writ, other processes, summonses against the Fund which may not be proceeded
with, without leave of the court, during the exitance of the curatorship. The first
respondent did this without being prompted; the applicant did not refer to s
5(5)(a) of the Protection of Funds Act in his founding affidavit.
[35] Section 5(5)(a) of the Protection of Funds Act reads as follows:
‘The court may, for the purposes of a provisional appointment in terms of subsection (2)(a) or
a final appointment in terms of subsection (4), make an order with regard to —
(a) the suspension of legal or foreclosure proceedings against the institution for the
duration of the curatorship;’
8 Petersen judgment para 25
[36] Even if I am wrong, from the reading of paragraph 5 of the Hendricks
order and the applicant's founding affidavit , it is clear that the applicant cannot
move for a final interdict. The applicant must at least make out a case for an
interim interdict , as the applicant is under curatorship, and any interdictory
order sought is tied to the curatorship order. In addition, a review application is
pending in the Labour Court between the applicant, the first respondent, and the
third respondent . An inter im interdict is one which is granted pendente lite .
There must be legal proceedings pending between the parties. 9 It is a provisional
order designed to protect the rights of the complainant party pending an action
or application to be brought by him/her to establish the respective rights of the
parties.10 It does not involve a final determination of the parties' rights and does
not affect such a determination 11. Its effect is to ‘freeze’ the position until the
court decides where the right lies at which point it ceases to operate 12. It is
aimed at ensuring, as far as is reasonably possible, that the party who is
ultimately successful will receive adequate and effective relief13.
[37] The general rule is that the applicant must be a person having locus standi
to apply in that he/she has an interest in the subject matter of the interdict 14. A
party which cannot demonstrate an extant right in property could nonetheless
apply for an interdict to preserve the property concerned if it could make out a
prima facie case that it would receive relief in the future from which a right in
the property would flow.15 The person against whom an interdict is sought must
be the person responsible, either as principal or as agent, for the wrong
9 Pikoli v President of Republic of South Africa (Pikoli) 2010 (1) SA 400 (GNP) at 403H).
10 Pikoli at 403I; Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban 1986 (2) SA
663 (A) at 681D–F.
663 (A) at 681D–F.
11 Apleni v Minister of Law and Order 1989 (1) SA 195 (A) at 201B; Pikoli at 403I – 404A.
12 Jordan v Penmill Investments CC 1991 (2) SA 430 (E) at 436F.
13 Pikoli at 404A.
14Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A) at
388A–I.
15 Antares International Ltd v Louw Coetzee & Malan Inc 2014 (1) SA 172 (WCC) at 188C–E, 188I and 190G–
H.
committed or threatened; and in appropriate circumstances, third parties may
have to be cited.
[38] In order for the applicant to succeed with the interdictory relief that it
seeks, it must satisfy this Court that it has: ‘(a) a prima facie right; (b) a well -
grounded apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted; (c) a balance of convenience in
favour of the granting of the interim relief; and (d) the absence of any other
satisfactory remedy.’ 16 Sight should not be lost to the fact that the Hendricks
order is not final in nature; it remains extant and ceases to exist when the
applicant is no longer under curatorship.
A prima facie right
[39] As a result of the first respondent’s warrant, t he monies attached from the
applicant's bank account held with the fourth respondent are now held in the
fourth respondent's suspense account. The applicant has been placed under
curatorship to protect the interests of vulnerable groups. The applicant has lost
access to money, which could be used to fulfil the objectives of the curatorship
order. The applicant stands to lose a substantial amount of money to the first
respondent, who may ultimately not be entitled to such monies if the Labour
Court sets aside the award granted by the third respondent in his favor . I am
accordingly satisfied that the applicant has made out a proper case showing it
has a prima facie right.
A well-grounded apprehension of irreparable harm if the interim relief is
not granted, and the ultimate relief is eventually granted
16 Setlogelo v Setlogelo 1914 AD 221 at 227 ; South African Informal Traders Forum and Others v City of
Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and
Others [2014] ZACC 8; 2014 (6) BCLR 726 (CC); 2014 (4) SA 371 (CC) 2014 (4) SA 371 (CC) para 24.
[40] It is not disputed that the fourth respondent informed the applicant that it
had not transferred the monies to the second respondent. Should the attachment
be complete and the second respondent demand payment, the fourth respondent
would release the monies to the second respondent. The first respondent is of
pensionable age and unemployed. The applicant has a concern that , should the
monies be paid over to the first respondent and the Labour Court set the award
of the third respondent in favor of the f irst respondent aside, it would not be
able to recover the monies from the first respondent. The first respondent has
contended in his answering affidavit that his pensions have not been encashed. I
have difficulty with the first respondent's contention.
[41] In the Petersen judgment at paragraph 11, the Honourable Judge refers to
what the first respondent stated in the application before that court. The first
respondent stated that he is 61 years old, a married father of adult children, and
his wife is unemployed and has been a housewife most of her life. The
Honourable Judge went on to record that the first respondent stated that, since
his dismissal, he has lost all his assets, including his house, which was sold, and
has depleted his investments and pen sion funds . He has consequently had to
rely on charity from his church and family . It appears that the first respondent
made two conflicting statements under oath regarding his pension benefits. I am
satisfied that there is a well-grounded apprehension of irreparable harm if the
interim relief is not granted, and the monies are paid over to the first respondent,
the Labour Court sets aside the award of the third respondent in favor of the
first respondent, that the applicant will not be able to recover the monies from
the first respondent.
A balance of convenience in favour of the granting of the interim relief.
[42] If the interim order is not granted, paragraph 5 of the Hendricks order will
[42] If the interim order is not granted, paragraph 5 of the Hendricks order will
be rendered hollow, as the first respondent would have executed the arbitration
award without first obtaining leave of the court. There is no impediment to the
first respondent approaching the court for an order granting him leave to
execute the arbitration award against the applicant. I am accordingly satisfied
that the balance of convenience is in favor of granting the interim relief.
The absence of any other satisfactory remedy.
[43] Having considered the history of this matter, the first respondent has
attempted to execute the arbitration award granted in his favor by the third
respondent on numerous occasions before the Hendricks order. The applicant
has not taken this Court into its confidence to explain why it did not approach
the Labour Court for an order staying execution of the award. The applicant has
not taken this Court into its confidence to explain why it did not approach the
Labour Court for an order interdicting the fourth respondent from paying the
attached monies over to the second respondent or an order interdicting the
second respondent if the money had been paid over to the second respondent by
the fourth respondent from paying the money over to the first respondent and to
direct the second respondent to repay the money received from the fourth
respondent to the applicant.17
[44] The applicant has approached this Court for an order declaring that the
first respondent is in contempt of the Hendricks order and the Petersen
judgment. The effect of a finding that the first respondent is in contempt of the
orders of the court does not result in the applicant gaining access to the monies
held in the suspense account of the fourth respondent. I am satisfied that the
applicant has shown that it has no other satisfactory remedy than to approach the
17 Windybrow Theatre v Maphela and Others (Windybrow Theatre) (J89/15) [2015] ZALCJHB 450; (2015) 36
ILJ 1951 (LC) (13 February 2015)
court for interdictory relief. The applicant could have approached the Labour
Court for the interdictory relief sought in paragraphs 4, 5 and 6 of its notice of
motion, but as dominus litis chose to bring the application in this Court. I
believe the other factor that may have contributed to the applicant in bringing
the application for interdictory relief in this Court is the Windybrow Theatre
judgment, in that judgment, the Labour Court found at paragraph 13, that it did
not have jurisdiction to order the first respondent in that matter to repay the
money he received from the Sheriff to the applicant and the applicant in that
matter may rely on other legal avenues to recover the money. I have dealt with
why instituting action against the first respondent does not appear to be an
appropriate alternative relief above.
[45] In prayer 1 of the notice of motion, the applicant has sought an order
setting aside the enforcement of the award order /the warrant , dated 16
November 2023, and issued by the third respondent . The applicant faces t wo
difficulties in this regard . The first, a n application to set aside a writ , can only
be made in the court that issued the writ .18 The enforcement of the award
order/warrant was not issued in this court. Second, the enforcement of the award
order/warrant was issued by the third respondent. The third respondent is a
creature of statute and is not clothed with the jurisdiction to set aside or stay the
enforcement of its own award orders/warrants. 19 An application to stay the
enforcement of award order/warrant may be brought in the Labour Court in
terms of s 145(3) of the LRA . The applicant ought to have approached the
Labour Court and brought an application under s 145(3) of the LRA for an order
staying the enforcement of the award pending the Labour Court's decision. This
Court does not have the necessary jurisdiction to entertain this request. Prayer 1
of the notice of motion must accordingly fail.
of the notice of motion must accordingly fail.
18 Shandling v Southern Union Manufacturing Co Ltd 1933 CPD 607 at 609.
19 MBS Transport CC v South African Municipal Workers Union (SATAWU) and Others (J1807/2015) [2015]
ZALCJHB 461 (6 November 2015) para 15
[46] Having found that the first respondent is in contempt of the Hendricks
order. I now turn to determine an appropriate punishment for the contempt-of-
court finding. The applicant, in its notice of motion, sought a term of
imprisonment as punishment for the first respondent's contempt of the court's
order. The applicant, however, did not indicate the period of imprisonment the
court should impose on the first respondent. In the heads of argument, the
applicant sought a term of direct imprisonment to be determined by the court. Is
a term of direct imprisonment an appropriate sanction? In Fakie, Heher J A
writing for the minority with Farlam JA concurring said the following at
paragraphs 73 to 77:
‘[73] Upon proper analysis the distinction between coercive and punitive orders has
something to do with the intent of an applicant or the court but much to do with the
consequences of the order. It is the latter aspect to which any judicial officer who is required
to consider whether an order of committal for contempt of court should be granted should pay
careful attention.
[74] The following are, I would suggest, the identifying characteristics of a coercive order:
1. The sentence may be avoided by the respondent after its imposition by appropriate
compliance with the terms of the original (breached) order ad factum praestandum
together with any other terms of the committal order which call for compliance. Such
avoidance may require purging a default, an apology or an undertaking to desist from
future offensive conduct.
2. Such an order is made for the benefit of the applicant in order to bring about
compliance with the breached order previously made in his favour.
3. Such an order bears no relationship to the respondent’s degree of fault in breaching
the original order or to the contumacy of the respondent thereafter or to the amount
involved in the dispute between the parties.
4. Such an order is made primarily to ensure the effectiveness of the original order and
4. Such an order is made primarily to ensure the effectiveness of the original order and
only incidentally vindicates the authority of the court.
[75] By contrast a punitive order has the following distinguishing features:
1. The sentence may not be avoided by any action of the respondent after its imposition.
2. The sentence is related both to the seriousness of the default and the contumacy of the
respondent.
3. The order is influenced by the need to assert the authority and dignity of the court and
as an example for others.
4. The applicant gains nothing from the carrying out of the sentence.
[76] The differences are marked and important. They emphasise that a coercive order of
imprisonment is one to which a respondent willingly (if reluctantly) and defiantly submits in
order to frustrate the rights of another party. If he is ‘deprived’ of his liberty it is because he
has, with knowledge of the order and the consequences of disobedience, elected to flout the
order. Such an attitude has nothing to do with an onus of proof: the respondent would or
would not submit or comply irrespective of the onu s. Nor can one properly describe as
‘punishment’ that confinement to which a defendant of his own choice submits to serve his
own ends. So understood, the circumstances of a coercive detention (and the procedure which
is fair and appropriate to its imposition) stand at a vast remove from the case of enforced
deprivation of liberty against which s 12 is primarily concerned to guard.
[77] Of course there is a public dimension to both categories of order. But its emphasis is not
the same, as I have pointed out. In any event, the public interest in having court orders which
do not contain empty promises is a strong factor in favour of retaining the lighter onus.’
[Footnotes omitted]
[47] Coercive committal, through a suspended sentence, uses the threat of
imprisonment to compel compliance. This Court cannot ignore the fact that the
first respondent has, on numerous occasions, attempted to execute the
arbitration award. Some of these attempts were made before the Hendricks
order, and they were well within the law's prescriptions. The difficulty the first
respondent faces is that attempting to execute the arbitration award after the
respondent faces is that attempting to execute the arbitration award after the
Hendricks order, without first seeking leave from the court, is contemptuous of
that order. T here was no prior threat to the first respondent's freedom . A
coercive order that employs the threat of imprisonment in the event of further
non-compliance would be capable of vindicating the extent to which the court's
authority has been violated. If this Court orders a suspended sentence, it will
deter the first respondent from executing the arbitration award without first
applying to the court for leave to do so. The first respondent will be given an
opportunity to purge his contempt. In Fakie, the court stated that a coercive
order only incidentally vindicates a court’s honour.
[48] It is trite that the c ourt enjoys wide remedial discretion to determine
appropriate relief ; it is also trite that, in determining appropriate relief in
contempt proceedings, th e court should be guided by the approach adopted by
other courts.20 It has been held that the ‘ principal purpose of contempt of court
proceedings when an order has been disobeyed has been held to be 'the
imposition of a penalty in order to vindicate the court's honour consequent upon
the disregard of its order ... and to compel the performance thereof. ’21 It is
indeed the accepted practice in contempt matters to seek compliance by using
punishment as a means of coercion . In other words, committal is ordered for
coercive purposes and made conditional upon non -compliance with a
mandamus or interdict. 22 It is vital to the administration of justice that those
affected by court orders obey them. Our courts cannot tolerate the disregard of
their orders. A court would be failing in its duty if it did not impose a
punishment which takes into account the serious nature of this type of offence. 23
It should be further borne in mind that a court is loath to restrict the personal
liberty of the individual in matters of this kind.24
[49] I have considered the Zuma judgment in deciding if a punitive order /an
order of direct imprisonment would be appropriate in the application before this
Court. I further considered the judgment of Morgan AJ in E[....] N[....] M[....]1
20 Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others (Zuma) 2021
(5) SA 327 (CC) para 54
21 Victoria Park Ratepayers' Association v Greyvenouw CC and Others - 2004 JDR 0498 (SE) para 19 and the
authorities cited therein, referred to in Zuma para 54
22 Ibid
23 Protea Holdings Ltd v Wriwt and Another 1978 (3) SA 865 (W) at 871H
24 Ibid 872B
(n[....] D[....])v L[....] T[....] M[....]2 and another (E[....] N[....] M[....]1 (n[....]
D[....]) (DIV88/11& UM107/18) [2023] ZANWHC (30 March 2023) . The
similarities I found between the Zuma judgment and E[....] N[....] M[....]1
(n[....] D[....] are that the contemnors in those matters made it clear, in
unambiguous terms, that they would not abide by the court's orders. In Zuma,
Mr Zuma had made it clear that he would not purge his contempt. Mr Zuma had
failed to comply with previous court orders. Khampepe ADCJ (as she was then)
identified that Mr Zuma offered neither contrition nor apology .25 In E[....]
N[....] M[....]1 (n[....] D[....] the first respondent indicated that he would not
comply with the court order. He had failed to comply with previous orders.
Morgan AJ identified that the first respondent in the matter that served before
him had offered no contrition or apology.
[50] In arriving at what I consider to be an appropriate punishment, I have
considered the alleged prejudice the applicant has suffered because of the
attachment of the monies in the suspense account of the fourth respondent. It
has been contended on behalf of the applicant that , because of the attachment,
the applicant has lost access to money which could be used to fulfil the
objectives of the curatorship order. I have further considered that the application
in this matter was issued on 30 January 2024, the first respondent filed his
answering affidavit on or about 4 March 2024, the application was heard by this
Court on 10 October 2025, from the date on which the application was issued to
the date of hearing of the application the applicant has not filed a supplementary
affidavit detailing further attempts by the first respondent to execute the
arbitration award. I have considered the authorities on contempt of court
proceedings that I have cited in this judgment and weighed the distinction
between coercive and punitive orders . In my view, a fine would not be an
between coercive and punitive orders . In my view, a fine would not be an
appropriate punishment given that the first respondent is unemployed and a
25 Zuma para 51
pensioner. In all the circumstances, I have decided to impose a term of
imprisonment suspended on certain conditions . One hopes that this will have a
salutary effect on the first respondent and ensure that he desists from and
refrains from repeating his contemptuous conduct.
Costs
[51] It is a trite principle in our jurisprudence that costs follow the cause, and I
have not found any reason to deviate from this principle. The purpose of an
award of costs is to indemnify a successful party who has incurred expenses in
instituting or defending an action .26 The first respondent was advised in the
Petersen judgment what steps to take against the applicant. The first respondent
decided not to follow the sound and solemn advice of the court and elected to
execute the arbitration award without first exhausting his remedies in the
Labour Court and obtaining leave to execute the award in the court.
[52] The contemptuous conduct of the first respondent prompted this
application. It has been said that the court orders attorney and client costs to
mark its disapproval of a litigant's conduct. In Public Protector v South African
Reserve Bank27(Public Protector), the majority of the Constitutional Court, with
reference to Orr v Schoeman28, stated:
‘More than 100 years ago, Innes CJ stated the principle that costs on an attorney and client
scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant.
Since then this principle has been endorsed and applied in a long line of cases and remains
applicable. Over the years, courts have awarded costs on an attorney and client scale to mark
their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious
conduct; and conduct that amounts to an abuse of the process of court.’ [Footnotes omitted]
26Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488
27 2019 (6) SA 253 (CC) para 223
28
[53] The authors of Erasmus: Superior Court Practice , Vol 2 at RS 27, 2025,
D5–25, as it relates to the Public Protector judgment, state the following:
‘This terminology suggests that an award of attorney and client costs is a form of punishment.
The treatment of such an award simply as punishment does not, however, supply a complete
explanation of the grounds on which the practice rests; something more underlies it than the
mere punishment of the losing party. On the other hand, the order cannot be justified merely
as a form of compensation for damages suffered. The true explanation of awards of attorney
and client costs not expressly authorized by statute is that, by reason of special considerations
arising either from the circumstances which give rise to the action or from the conduct of the
losing party, the court in a particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of a judgment for party and party costs that
the successful party will not be out of pocket in respect of the expenses caused to him by the
litigation. Theoretically, a party and party bill taxed in accordance with the tariff wi ll be
reasonably sufficient for that purpose. However, in fact a party may have incurred expense
which is reasonably necessary but is not chargeable in the party and party bill. Therefore in a
particular case the court will try to ensure, as far as it can, that the successful party is
recouped.’ (own emphasis)
[55] I agree with what the authors of Erasmus: Superior Court Practice have
stated above . T his Court disapproves of the manner in which the first
respondent caused to be executed the arbitration award; it was reckless and
contemptuous of the Hendricks order . I cannot find any reason why the
applicant should be out of pocket in instituting these proceedings ; the conduct
of the first respondent warrants a costs order on the attorney-and-client scale.
Order
Order
[56] Resultantly, the following order is made.
1. It is declared that the first respondent is in contempt of the order of
Hendricks J (as he then was) of 12 April 2018 under case number
M24/2018 (the Hendricks order).
2. The first respondent is committed to serve a term of imprisonment
for a period of 30 (thirty) calendar days.
3. The operation and execution of the order in (2) above is suspended
on condition that the first respondent complies with the Hendricks
order whilst the curatorship of the applicant exists.
4. A copy of this order must be served personally on the first
respondent by the Sheriff.
5. Should the first respondent fail to act in accordance with paragraph
(3) above, leave is granted to the applicant to again approach this
Court on the same papers, duly supplemented, to have the
suspension of the order in paragraph (3) lifted and for an order of
imprisonment to become immediately operative.
6. The fourth respondent is hereby interdicted from paying the
amount of R915 704.38 (Nine Hundred and Fifteen Thousand
Seven Hundred and Four Rand and Thirty – Eight Cents) over
to the first respondent and/or the second respondent and/or his
agents and assigns; alternatively,
7. Where the amount of R915 704.38 (Nine Hundred and Fifteen
Thousand Seven Hundred and Four Rand and Thirty – Eight
Cents) has been transferred into a suspensive account, the fourth
respondent is to transfer said amount of R915 704.38 (Nine
Hundred and Fifteen Thousand Seven Hundred and Four
Rand and Thirty – Eight Cents) back into the bank account of the
applicant held by the fourth respondent.
8. Where the aforesaid amount has been paid to the first and/or
second respondent, the first and/or second respondent is ordered to
repay the amount of R915 704.38 (Nine Hundred and Fifteen
Thousand Seven Hundred and Four Rand and Thirty – Eight
Cents) into the applicant’s bank account held with the fourth
respondent.
9. The first respondent is ordered to pay the costs of this application
on the attorney-and-client scale.
_______________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the applicants: Adv K S Matlala
Instructed by: Steven Maluleke Attorneys
c/o M.E Tlou Attorneys
For the first respondents: Adv T Maphike
Instructed by: D.G Mafuya Attorneys
c/o Maree and Maree Attorneys