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REGISTRATION NUMBER: 2017/389156/07
(AND ALL THOSE HOLDING UNDER IT) First respondent
JASON OLIVIER DOMINGUEZ-BAYA
(AND ALL THOSE HOLDING UNDER HIM) Second respondent
THE CITY OF JOHANNESBURG Third respondent
JUDGMENT
Mahosi J
[1] The applicants brought an interlocutory application for an order declaring the first
and second respondents in contempt of a “compelling order” granted by Kruger AJ on 4
December 2025 and striking out the respondents’ defence in the main eviction application.
The compelling order required the respondents to deliver their heads of argument and a
practice note in the main eviction application on or before 20 January 2026. It is common
cause that the respondents have not done so.
[2] The respondents objected to re-enrollment of this application on the basis that it is
res judicata as it has already been heard in the Special Interlocutory Court by Liebenberg
AJ, who allegedly held in her extemporaneous judgment that it should be heard in the
opposed motion Court. The order issued by Liebenberg AJ removed the matter from the
roll. In the absence of an order transferring this matter to the opposed motion court, it is
properly before this Court.
[3] The issue to be determined is whether the respondents are in contempt of the
compelling order. If so, whether their defence should be struck out.
[4] The principles of civil contempt are well settled. There is no dispute on the
existence of the order of Kruger AJ, service thereof on the respondents, and
non‑compliance is admitted. The burden, therefore, shifts to the respondents to advance
evidence that raises a reasonable doubt about wilfulness and mala fides.
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[5] The respondents’ main contention is that the compelling order was a nullity
because the applicants did not comply with paragraph 25.1.7.1 of the Practice Directive
1 of 2024 , which requires a formal demand on three days’ notice before launching a
compel application. Clause 25.1.7 of the Practice Directive reads:
“A party who has complied with the prescripts in this paragraph (the aggrieved party)
shall, upon noncompliance by an adversary, (the delinquent party):
25.1.7.1 make formal demand to comply on 3 days’ notice, failing which an
application shall be made in the Special Interlocutory Court (SIC) for a
compelling order.
25.1.7.2 if the delinquent does not comply timeously, or at all, the aggrieved party
shall apply for an order compelling the delinquent to comply within 5 days
of service of that order, by email on the attorney of record or by service on
the delinquent in person, in terms of the rules of court, and,
25.1.7.3 If the delinquent remains in default:
25.1.7.3.1 the aggrieved party shall, in the compliance statement -
form 5.1 - declare that the delinquent is in contempt of the
compelling order and seek an order holding the delinquent in
contempt of the compelling order and an order striking out the
delinquent’s claim or defence, as the case may be, and
25.1.7.3.2 the aggrieved party shall, thereupon, seek an enrolment
from the registrar upon the basis set out in the compliance
statement.
25.1.7.3.3 all the documents relevant to the delinquency shall be
uploaded in a section titled “delinquency” on the case datafile.”
[6] The applicants do not dispute that they failed to make the formal demand as
contemplated in paragraph 25.1.7.1 of the Practice Directive. Instead, they argue that this
defect does not render the order a nullity. They submit that, at most, it makes it irregular
and liable to rescission. In this regard, they rely on the distinction between an order made
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without jurisdiction (true nullity) and an order made within jurisdiction but following an
irregular procedure (voidable, not void).
[7] The distinction is legally sound. Kruger AJ plainly had jurisdiction over the subject
matter, being interlocutory delinquency in a pending case. The alleged defect is
procedural, not jurisdictional. It can, thus, not be said that his order is a nullity. A litigant
may not simply ignore a court order simply because they believe it was obtained
irregularly. The proper route is rescission, variation, or a stay and, crucially, compliance
in the meantime.
[8] However, in the specific context of a contempt hearing, where the standard is
beyond a reasonable doubt, the applicants’ failure to comply with a mandatory
precondition of the Directive is relevant to the respondents’ state of mind. The
respondents were entitled to point to the Directive and say: “The applicants did not comply
with the very rule that gives the court power to compel. Therefore, we genuinely believed
the order was invalid and that we could await rescission without being in wilful default ”.
This is not to say the respondents were correct. As a matter of law, they should have
complied while pursuing rescission or sought a stay under Rule 45A.
[9] The question in contempt proceedings is not who is legally correct . Rather, it is
whether the non ‑compliance was wilful and mala fide beyond a reasonable doubt. The
absence of the prescribed demand, the fact that the defect was pointed out before the
order was granted (as alleged in the replying affidavit), and the respondents’ immediate
launch of a rescission application create a reasonable doubt as to whether their conduct
was wilful. Therefore, the respondents’ argument, while legally flawed as a jus tification
for disobedience, is sufficient to raise a reasonable doubt about wilfulness. It follows that
the applicants failed to prove contempt beyond a reasonable doubt.
the applicants failed to prove contempt beyond a reasonable doubt.
[10] The respondents further rely on their rescission application, which was launched
on 25 February 2026 and is opposed. It is trite that rescission does not automatically
suspend an order . The respondents did not seek a stay under Rule 45A. The mere
pendency of a rescission application does not excuse non ‑compliance. If it did, every
defaulting litigant could neutralise an order by filing a rescission. That cannot be the law.
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Nevertheless, the rescission application, taken together with the procedural defect in the
application to compel, reinforces the reasonable doubt about the respondents’ state of
mind. They did not simply ignore the order . Instead, they actively challenged it. Their
failure to seek a stay was imprudent, but not necessarily evidence of mala fides.
[11] The respondents argue that the heads of argument were not yet due because the
status of the applicants’ replying affidavit in the main application was unresolved. This
point appears to be an afterthought and not a genuine justification for non ‑compliance.
The applicants withdrew th eir replying affidavit in November 2025, well before the
compelling order was issued. Therefore, the Rule 30 notice became moot. The withdrawal
of the replying affidavit resolved any uncertainty. The respondents could and should have
filed their heads of argument once the compelling order was granted. In light of the above,
the applicants have not proved contempt beyond a reasonable doubt. The application for
a declarator of contempt ought to be dismissed. In the circumstances, there is no need to
consider the strike-out application. However, it is only considered for completeness.
[12] It is trite that the strike‑out of a defence is a drastic remedy. It deprives a litigant of
the right to be heard on the merits, which is protected by section 34 of the Constitution.
In this matter, the main application is for eviction , and t he respondents have raised
arguable defenses regarding the authority of trustees, the arbitration clause, the validity
of cancellation, and compliance with the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act. These defences should be determined in the main application,
not disposed of on an interlocutory delinquency point. Moreover, the applicants
themselves did not follow the prescribed procedure for the compel application.
themselves did not follow the prescribed procedure for the compel application.
Proportionality requires a less draconian remedy. Resultantly, the strike‑out application
should, therefore, be refused.
[13] The respondents characterise the contempt application as an abuse of process,
aimed at striking out their defences without the full ventilation of the merits. There is no
basis for this submission . The applicants are entitled to use the mechanisms in the
Practice Directive to compel compliance. The fact that they refused the respondents’
conditional offer to deliver heads in exchange for withdrawal of the contempt application
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does not make the application an abuse. The respondents could have filed heads
unconditionally at any time, but they did not.
[14] Although the respondents are not in contempt, their conduct has been
unreasonable. They did not file heads of argument for many months after they were due,
failed to comply with the compelling order, and did not seek a stay. Instead, they offered
to comply only on condition that the applicants withdraw this application. Further, they
raised a Rule 30 point that became moot, and they have not yet delivered their heads of
argument or practice note. Their opposition, while not mala fide , was obstructive and
caused unnecessary litigation.
[15] The applicants, for their part, also contributed to the procedural morass by failing
to make the formal demand required by the Directive. That factor has been taken into
account in refusing the contempt and strike‑out. But it does not excuse the respondents’
persistent non‑compliance. In the circumstances, a refusal to grant them costs is justified
to signal that litigants may not simply disregard court orders, even if they believe them to
be irregular, without first seeking proper judicial relief.
[16] Accordingly, the following order is made:
1. The application for a declaration that the first and second respondents are
in contempt of the order of Kruger AJ dated 4 December 2025 is dismissed.
2. The application to strike out the first and second respondents’ defence in
the main eviction application is dismissed.
3. The first and second respondents are directed to deliver their heads of
argument and practice note, accompanied by a condonation application in
the main eviction application, on or before 15 May 2026.
4. Should the first and second respondents fail to comply with paragraph 3,
the applicants are granted leave to apply on the same papers,
supplemented if necessary, for an order striking out the respondents’
defence.