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[2017] ZACC 35
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Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) (26 September 2017)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case:
CCT 217/15 and CCT 99/16
CCT
217/15
In the matter
between:
MATJHABENG LOCAL
MUNICIPALITY
Applicant
and
ESKOM HOLDINGS
LIMITED
First

Respondent
MEMBER OF THE
EXECUTIVE COUNCIL,
LOCAL GOVERNMENT,
FREE STATE PROVINCE
Second

Respondent
NATIONAL ENERGY
REGULATOR
OF SOUTH
AFRICA
Third

Respondent
MINISTER OF
MINERALS AND
ENERGY
Fourth

Respondent
MINISTER OF
PROVINCIAL
AND LOCAL
GOVERNMENT
Fifth

Respondent
CCT
99/16
In the matter
between:
SHADRACK SHIVUMBA
HOMU
MKHONTO
First

Applicant
COMPENSATION
COMMISSIONER
Second
Applicant
DIRECTOR-GENERAL,
DEPARTMENT OF
LABOUR
Third
Applicant
MINISTER OF
LABOUR
Fourth
Applicant
and
COMPENSATION
SOLUTIONS (PTY)
LIMITED
Respondent
Neutral citation
Matjhabeng Local Municipality v Eskom Holdings Limited and
Others;
Shadrack Shivumba Homu Mkhonto and Others v
Compensation Solutions (Pty) Limited
[2017] ZACC 35
Coram:
Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mhlantla J, Mojapelo AJ, Pretorius AJ, and Zondo J.
Judgments:
Nkabinde ADCJ (unanimous)
Heard on:
2
March 2017
Decided on:
26 September 2017
Summary:
contempt
of court — requisites for contempt — standard of proof in
civil and criminal contempt proceedings — appropriateness
of
summary procedure in contempt proceedings — non-joinder —duty
to comply with court orders.
ORDER
On appeal from the
High Court of South Africa, Free State Division, Bloemfontein (CCT
217/2015) and the Supreme Court of Appeal
(CCT 99/2016).
Under CCT 217/2015
(
Matjhabeng Local Municipality v Eskom Holdings Limited and
Others
), the following order is made:
1. Leave to appeal is granted.
2. Condonation is granted.
3. The appeal is upheld.
4. Paragraphs 1 and 2 of the order of the High Court of South Africa,
Free State Division, Bloemfontein are set aside and are replaced
with
an order dismissing the application.
5. Each party is to pay its own costs in this Court.
Under CCT 99/2016
(
Shadrack Shivumba Homu Mkhonto and Others v Compensation
Solutions (Pty) Limited
), the following order is made:
1. Leave to appeal is granted.
2. Condonation is granted.
3. The appeal is upheld.
4. Paragraphs (a) and (b) of the order of the Supreme Court of Appeal
are set aside.
5. Each party is to pay its own costs in this Court.
JUDGMENT
NKABINDE ADCJ
(Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Mojapelo AJ, Pretorius AJ, and Zondo J):
Introduction
[1]
At their core, these applications raise procedural and
substantive issues concerning the requirements of contempt of court,
specifically
when allegations of contempt
ex facie curiae
(occurring not in the presence of the court while sitting), are
made.  Frequently, the resultant committal to prison violates

the right to freedom and security of the person − which
includes the right not to be deprived of freedom arbitrarily or
without just cause and not to be detained without trial − in
terms of section 12(1) and the fair trial rights in terms of
section
35(3) of the Constitution.
[2]
Cases concerning contempt of court are now brought to our
courts with more frequency.  There is a widely held view that
contempt
of court is neither criminal nor civil.  As a result,
the standard of proof required in contempt has become somewhat
blurred.
Not only that.  Courts often employ summary
contempt procedures followed by imprisonment in motion proceedings.
It is
thus necessary for this Court to reflect on and clarify
the applicable principles in the process of determining the two
matters
before us.
[3]
The applicants seek leave to appeal the decisions of the High
Court of South Africa, Free State Division, Bloemfontein
[1]
(Free State High Court) and the Supreme Court of Appeal
[2]
in terms of which Messrs Mothusi Frank Lepheana (Mr Lepheana)
and Shadrack Shivumba Homu Mkhonto (Mr Mkhonto), respectively,
were
declared in contempt of court.  They were convicted and
sentenced to suspended imprisonment terms.  The primary
issue
for determination is whether the orders of contempt and imprisonment
sentences against them are just and equitable.
[4]
The two applications for leave to appeal were heard at the
same time.  Before I deal with the law regarding contempt of
court,
it is expedient to set forth, for clarity, the parties,
background, submissions, and to identify the issues, first, in
respect
of CCT 217/2015 (
Matjhabeng
) and, second, in respect
of CCT 99/2016 (
Mkhonto
).
Matjhabeng
Parties
[5]
The applicant, Matjhabeng Local Municipality (Municipality),
is the second largest municipality in the Free State.  The
contempt
order was issued against its Municipal Manager, Mr Lepheana
(Municipal Manager).  The first respondent is Eskom Holdings
Limited
(Eskom).  The second to fifth respondents, collectively
referred to as the respondents, are the Member of the Executive
Council
for Local Government in the Free State (MEC), the National
Energy Regulator of South Africa, the Minister of Minerals and
Energy,
and the Minister of Provincial and Local Government.
The second to fifth respondents have not participated in these
proceedings.
Background
[6]
Eskom has been embroiled in a protracted effort to force the
Municipality to pay its electricity bills.  It threatened to
terminate
the electricity supply to the Municipality if its arrears
remained unpaid by 31 March 2013.  In response to the threatened

termination, the Municipality launched urgent proceedings to
interdict Eskom from cutting its electricity supply pending the
finalisation
of the dispute concerning the arrear amounts.  This
resulted in a deed of settlement in terms of which the Municipality
agreed
to pay an amount of R145 404 733.  The deed of settlement
was made an order of court, by Daffue J, on 28 March 2013 (first

consent order).  Because of the dispute between the Municipality
and Eskom regarding the amount which was due and payable,
the consent
order regulated the monthly payments to Eskom in order to liquidate
the arrears.
[3]
[7]
A year later, the Municipality had not complied with the first
consent order.  Eskom then launched an application to set aside

the first consent order and to place, in its stead, a structural
interdict to enforce payment.  On 31 July 2014, another order

was granted, by Kruger J, also by agreement between the parties
(second consent order).  In terms of this order,
the
Free State High Court directed, among other things, that the first
consent order be set aside; that parties enter into consultations;

and that the Municipality would resume payments from July 2014,
failing which the Municipal Manager would report to the Court,

setting out the reasons for its failure.
[4]
This is the order in respect of which Mr Lepheana was held, in his
personal capacity, to have been in contempt, and for which
he was
sentenced to imprisonment.  Although Eskom was not provided with
all the documents in terms of the second consent order,
the parties
did meet.  An agreement could not be reached in all aspects, but
the Municipality undertook to pay the future
monthly account in full
when same became due and payable.  Notwithstanding this, the
Municipal Manager did not report the
reasons for the failure to make
the payments, as required by the second consent order.
[8]
The Municipality still failed to discharge its obligations in
terms of the second consent order, as it had undertaken.

Eskom applied to the Free State High Court to
enforce the terms of that order.  On 18 September 2014,
Kruger J
ordered, on an
ex
parte
basis, the Municipality to
pay its electricity bill (rule
nisi
order).  The
rule
nisi
order called on the Municipal Manager, in
his official capacity, to file a report setting out―
(a) the reasons why the Municipality had not kept up with payment of
its electricity account;
(b) what steps the Municipality had taken to address its default;
(c) why the outstanding arrears should not be payable by 31 March
2015 given the Municipality’s history of non-compliance
with
the first and second consent orders; and
(d) why the Municipal Manager should not be held in contempt of court
for non-compliance with the reporting and disclosure obligations
set
out in the second consent order.
[9]
The Municipality was given until 6 October 2014 to file its
report and Mr Lepheana was ordered to be present in person in
Court
on 6 November 2014.  As directed, in terms of the rule
nisi
order, Mr Lepheana filed an explanatory affidavit on
behalf of the Municipality setting out why the orders had not been
complied
with.  In particular, the affidavit sets out the
various attempts made by himself and senior personnel of the
Municipality
to settle the dispute with Eskom.
[10]
On 6 November 2015, Mr Lepheana was present at Court.
The Court outlined facts to illustrate that the order was not
obeyed.
Counsel for Eskom was asked to confirm the correctness
of those facts.  The invitation was not extended to counsel for
the
Municipality or to Mr Lepheana himself.  Whilst counsel for
the Municipality was addressing the Court, the Court
[5]
ordered Mr Lepheana to enter the witness box.  He was sworn in.
It is evident from the transcript of the proceedings
that Mr Lepheana
was subjected to lengthy questioning by the Judge and counsel for
Eskom.  In its judgment, declaring Mr Lepheana
to be in contempt
of court, the Free State High Court remarked:
“I allowed Mr Lepheana the opportunity to testify under oath on
the 6 November 2014 when I heard oral argument
on behalf of
the parties.  Unfortunately his evidence was not helpful and did
not go any further than the generalisations
and hearsay evidence
contained in his written explanation.  He has not provided
sufficient evidence to displace the evidentiary
burden that rested
upon him.  His non compliance was not only wilful and
mala
fide
, but an indication of the high handed approach adopted
by so many senior public officials . . . .  His attitude
throughout
is baffling and his conduct undermines the esteem in which
the office of the Municipal Manager ought to be held.”
[6]
[11]
Further, the Court said:
“Wilful disobedience of an order of court made in civil
proceedings is a criminal offence.  Applications on notice of

motion are often brought in the High Court for committal for contempt
of court in order to bring about a proper discharge of obligations

under an order
ad factum praestandum
[for the performance of
or abstinence from performing specific acts] or under a prohibitory
interdict.”
[7]
[12]
The Court convicted Mr Lepheana of contempt of court and
sentenced him to six months’ imprisonment, wholly suspended.
[8]
[13]
The application for leave to appeal in the Free State High
Court was unsuccessful
[9]
and so was the petition to the Supreme Court of Appeal, hence this
application for leave to appeal.
Parties’
submissions
[14]
The Municipality, relying on
Mansell
, contends that it
only breached the agreement between the parties and not an order of
court.
[10]
It submits that the procedure
a quo
violated the precepts of
fairness, justice, and the rule of law.  This is so, it submits,
because the process was not served
on nor brought to the notice of
Mr Lepheana personally.  Ordinarily, the person targeted is
the official concerned in
his official capacity.  The
Municipality submits that Mr Lepheana should have been joined.
Although the Municipality
accepts that the Municipal Manager is its
responsible official, it contends that non-compliance with a court
order by itself did
not automatically attract contempt of court on
the part of Mr Lepheana without a substantive application.  The
Municipality
argues that the contempt proceedings did not provide Mr
Lepheana with appropriate protections and that the proceedings led
wholly
to a misapplication of the evidentiary burden during the 6
November 2014 hearing which, allegedly, had all the features of

undesirable summary contempt proceedings.
[15]
Eskom opposes the application for leave to appeal.  It
maintains that there was proper notice of the second consent order
because
the Municipality’s attorneys brought that order to the
attention of the Municipal Manager.  It submits that, based on

the meeting held with Eskom’s officials, Mr Lepheana was aware
of the obligations imposed upon him by the second consent
order.
Eskom argues that, as an accounting officer, Mr Lepheana drafted and
approved the payment plan.  Additionally,
Eskom submits that Mr
Lepheana was aware of the rule
nisi
and was present in court
on 6 November 2014 to deal, specifically, with the issue of
contempt against him.  Eskom submits
that the submission that
the issuing of the rule
nisi
violates the Constitution is not
supported by the facts, the law, or the decisions in
Mamabolo
,
[11]
Fakie,
[12]
and
Pheko II
.
[13]
[16]
As to non-joinder, Eskom accepts that “no court can make
a finding adverse to any person’s interests, without that
person
first being a party to the proceedings before it,” but
contends that this does not mean that
personal
service need be
made on the official before they are committed for contempt.  It
contends that formal joinder of the person
at risk of contempt is not
invariably necessary.  Eskom argues that the order imposed a
positive obligation on Mr Lepheana
“personally”.
[17]
Eskom disputes that the procedure followed was summary in
effect and unfair.  It submits that
Mamabolo
is
distinguishable from this case because the impugned conduct of
scandalising the court occurred after the conclusion of the
proceedings and did not involve non-compliance with a supervisory
interdict.
Issues
[18]
Preliminary issues in
Matjhabeng
involve whether leave
to appeal and condonation should be granted.  The principal
issue is whether the requisites of contempt
of court were
established.  The further issues concern the non-joinder of
Mr Lepheana in his personal capacity to the
contempt proceedings
and the appropriateness of the summary contempt procedure.  I
revert later to determine these issues
after clarifying the law on
contempt of court.
Mkhonto
Parties
[19]
The first applicant is Mr Mkhonto.  When the dispute
arose, he was the Commissioner of the Compensation Fund established
under
the Compensation for Occupational Injuries and Diseases Act
(COIDA).
[14]
The second applicant is the Compensation Commissioner
(Commissioner).  The Commissioner was cited as the first
respondent
throughout the proceedings – as well as when the
contempt proceedings were initiated against him.  As a
Commissioner,
he administered payment of medical claims for
employees.  He resigned from his position on 1 June 2015
and was thus no
longer the Commissioner when the appeal was heard
before the Supreme Court of Appeal.  The third and fourth
applicants
are the Director-General of the Department of Labour
(Director-General)
[15]
and the Minister of Labour (Minister). These applicants allegedly
support the application for leave to appeal.  They have
not
participated in the proceedings.  The Director-General delegated
the day-to-day performance of the activities in terms
of COIDA to the
Commissioner.
[20]
The respondent, Compensation Solutions (Pty) Limited
(CompSol), conducts a business of purchasing medical claims at face
value minus
a factoring fee.  In that way, it becomes the legal
holder of the medical aid accounts and is entitled to enforce the
claims
against the Commissioner, Director-General, and Minister.
Background
[21]
The matter of
Mkhonto
shows that the compensation
system established under COIDA has not functioned as it should
because of delays in processing, validating,
and paying medical
accounts.
[16]
The delays have resulted in severe backlogs in payment of the
accounts.  After various unsuccessful efforts to obtain
payment
for outstanding compensation on behalf of its clients, CompSol
ultimately resorted to litigation in which Mr Mkhonto
was cited
in his official capacity, as the Commissioner.
[22]
In June 2009, and related to the unresolved medical accounts
at the time, CompSol instituted proceedings in the High Court of
South
Africa, Gauteng Division, Pretoria (Pretoria High Court)
against the Commissioner, Director-General, and Minister for
declaratory
relief and
mandamus
to address payment of
outstanding accounts.  The parties reached a settlement
agreement.  This agreement was signed by
the Commissioner, on
behalf of the applicants, and was made an order of court on
31 July 2009 (consent order).
This is the order in
terms of which Mr Mkhonto is held, in his personal capacity, to
have been in contempt.  The consent
order regulated the
processing of medical accounts by the Commissioner within a
reasonable time, that is to say, 75 days after
their
submission.
[17]
[23]
In terms of the consent order a claim had to be accepted as
valid at the date of submission of the account within 75 days after
acceptance of liability for the claim, in terms of paragraphs 1 and 2
of the order; the processing of backlog accounts in terms
of
paragraph 3 of the order; the payment of interest on all outstanding
medical accounts from the date of demand to the date of
payment in
terms of paragraph 4 of the order; submission by CompSol of a CD with
a list of claims for each of which the Commissioner
has to provide
the status within seven days of receipt of the CD in terms of
paragraph 5 of the order; and weekly meetings to ensure
a functional
process, in terms of paragraph 6 of the order.
[24]
The Commissioner and other applicants failed to comply with
the consent order.  CompSol applied, in November 2009, for an
order
declaring the Commissioner to be in wilful contempt of the
consent order.  It also instituted three action proceedings
against
the Commissioner.  When the Commissioner entered an
appearance to defend the actions, CompSol applied for summary
judgment.
At the hearing of the applications for summary
judgment,
[18]
the Commissioner accepted liability for the amounts claimed plus
interest.
[25]
In February 2010, CompSol lodged a second contempt application
in which similar relief was sought.
[19]
This application was similarly settled during August 2010.
The Commissioner thereafter and once again persisted in
refusing to
make payment in terms of the consent order.  CompSol’s
attorneys addressed a letter, on 18 April 2013,
to the
Director-General and the Minister asking for a workable solution to
payments and threatening legal proceedings.  In
July 2013,
CompSol applied for an order declaring the Commissioner to be in
contempt of paragraphs 1, 2, 5, and 6 of the consent
order.
[20]
The relief sought related to the Commissioner’s failure to
process medical accounts within a reasonable time, 75 days
for
accounts relating to accepted claims, his failure to provide the
status for each claim contained on the CD submitted to his
office by
CompSol, and his failure to ensure that the weekly meetings
effectively served the functional processing of accounts.
[21]
CompSol contended that the Commissioner, wilfully and
mala fide
(in bad faith), breached the consent order.  It said that
delays in the processing of claims resulted in doctors refusing to

treat patients and in CompSol’s looming closure of its doors if
payment was not received.
[26]
The Commissioner opposed the application, explaining that
there were five different solutions to the backlog problem,
[22]
including an advance payment agreement (APA), which was later
cancelled.
[23]
[27]
CompSol filed further papers to provide an update of the
outstanding amount.  The Commissioner, Director-General, and
Minister
were afforded an opportunity to file answering papers by 26
August 2013.  They didn’t. On 5 September 2013,

the Commissioner was ordered to pay R127 152 278 by 16
September 2013. By 3 September 2013, the answering affidavit
had
not been filed.  This prompted CompSol to enrol the application
for hearing on 12 February 2014.  Although there
seems to be
confusion about dates, it appears that certain amounts were paid by
December 2013, seemingly in relation to new claims.
[28]
On 12 February 2014, an answering affidavit was filed.  It
was deposed to by Mr Masalesa, the Senior Practitioner: Medical

Payments in the office of the Fund.  The Commissioner filed an
unattested affidavit without the Court’s leave. That
affidavit
was struck out and, according to Mr Mkhonto, a subsequent affidavit
by the Commissioner was rejected by the Pretoria
High Court because
it was late.  In his founding affidavit, Mr Mkhonto explains
that Mr Masalesa was the official who dealt
with claims and was best
placed to deal with difficulties experienced in relation to CompSol’s
claims.  Notably, Mr
Mkhonto said that he had no personal
knowledge of the daily activities surrounding the processing and
payment of claims.
According to him, he relied on officials who
performed these functions, including Mr Masalesa.
[29]
In the answering affidavit, Mr Masalesa disputed the amount
allegedly owing, including the interest claimed.  He stated that

claims had to be considered in the light of the volumes of claims
submitted monthly and that CompSol had not made out a case for

contempt.  Mr Masalesa averred that the Commissioner had been
continuously implementing measures to ensure that payments were
made
within a reasonable time; that the backlog was neither wilful nor
mala fide
; that the offices of the Fund had examined the
claims submitted on the CD and found that the amount approved was
less than the
amount CompSol had claimed; and that CompSol had not
complied with the notice requirements in terms of section 4 of the
Institution
of Legal Proceedings against Certain Organs of State
Act.
[24]
Further pleadings were filed.
[30]
On 18 February 2014, the Pretoria High Court – per
Jansen J – issued an order in terms of which: CompSol and the
Commissioner
would appoint representatives who would meet to
reconcile the lists of outstanding accounts; the parties would
prepare a joint
report in relation to the accounts on which agreement
had been reached; and CompSol would process those accounts for
immediate
payment.  However, the parties failed to prepare a
joint report.  Finally, the joint report was filed on
17 September 2014.
The report indicated, among other
things, the figure of the sums that remained unpaid – amounting
to R93 903 293.08.
The reason for the failure to pay
was, allegedly, logistical problems in the systems of the financial
division of the Fund.
The said amount increased to
R127 152 278.22, by virtue of the time lapse itself as
regards the 75 day accounts.
CompSol attempted to convene a
meeting with the respondents without success.
[31]
Mr Masalesa explained that, when the respondents agreed to the
consent order, it had not been revealed to them just how many claims

would be submitted at a time nor did they anticipate that the flood
of claims would be a hindrance to the obligation assumed in
the
consent order.  He explained that the Commissioner committed to
fulfilling his legislative mandate and had continually
been
implementing measures to ensure that payments were made within a
reasonable period.  This, he said, is illustrated by
the
employment of companies like the Medical Service Organisation SA Pty
Limited (MSO) and EOH Holdings Limited (EOH) – to
eliminate the
backlog in processing medical accounts.
[32]
The Pretoria High Court, per Hughes J,
[25]
mentioned that at the commencement of the contempt proceedings, the
respondents requested time to settle the dispute.  The
Court
said that this “proved fruitful in that the monetary aspect
sought in the order . . . was resolved”.  The
Court went
on to determine whether the Commissioner was in contempt.  It
held that the Commissioner was aware of the consent
order.
[26]
Relying on
Federation
,
[27]
the Court concluded that the consent order should be categorised as
one that is between the parties (
inter partes
), and that
contempt proceedings are between the non-compliant party and the
court and not between the parties themselves.
The Court
concluded that contempt proceedings cannot be initiated in those
circumstances.  It nonetheless considered whether
CompSol had
proven the requisites of contempt of court, in case it was wrong.
[33]
Having found that the first three requisites of contempt of
court were established, the Pretoria High Court held that the
Commissioner’s
failure to perform the specific tasks in terms
of the consent order was not wilful and
mala fide
.
[28]
This was so, the Court held, because the disobedience was between the
parties and not contemptuous of the Court.
[29]
The Court dismissed CompSol’s application to declare Mr Mkhonto
in contempt of the consent order of 31 July 2009 and
ordered costs of
the applications in favour of the applicants (respondents
a
quo
).
[30]
These costs included costs of the employment of senior counsel, where
used.  CompSol appealed to the Supreme Court of

Appeal.
[34]
In determining whether Mr Mkhonto was guilty of contempt,
the Supreme Court of Appeal said the following:
“The question which then arises is whether the appellant proved
that the Commissioner’s failure to comply with the
[consent
order] amounted to civil contempt of court, beyond a reasonable doubt
to secure his committal to prison.  An applicant
for this type
of relief must prove (a) the existence of a court order; (b) service
or notice thereof; (c) non-compliance with
the terms of the order;
and (d) wilfulness and
mala fides
beyond reasonable
doubt.  But the respondent bears an evidentiary burden in
relation to (d) to adduce evidence to rebut the
inference that his
non-compliance was not wilful and
mala fide
.
Here, requisites (a) to (c) were always common cause.  The only
question was whether the Commissioner rebutted the evidentiary
burden
resting on him.”
[31]
[35]
The Supreme Court of Appeal considered the Commissioner’s
affidavit in which he mentioned:
“[A]part from [CompSol’s] claims, the Fund receives on a
daily basis claims from medical practitioners as well.
The flood of [CompSol’s] claims and because priority has to be
given to them, the claims submitted by other medical practitioners

suffer.  I have suggested earlier that what [CompSol] seeks to
impose, is unconstitutional.  [CompSol] seeks preferential

treatment and that breaches the equality clause in the Bill of
Rights.
When the [Minister], the [Director-General] and I committed ourselves
to the [consent order] it was not revealed to us just how
many claims
will be submitted at a time nor did we anticipate that the flood of
claims would be a hindrance to the obligations
assumed in the court
order.”
[32]
[36]
The Supreme Court of Appeal’s observations regarding
these undisputed averments was that the applicants—
“clearly viewed [CompSol’s] claims as a nuisance and the
[consent order] itself one which they could ignore because
the
obligations it imposed upon them regarding the manner in which
[CompSol’s] claims were to be paid were unlawful.
But
then court orders must still be obeyed even if they are considered to
be wrong.”
[33]
[37]
The Court identified the “only issue” for
determination as “whether the Commissioner rebutted the
evidential burden
resting on him” which, according to
Mr Mkhonto, is too narrow.  It relied on
Fakie
,
[34]
and held that the existence of the first three requisites of contempt
– order, service of notice, and non-compliance –
were
common cause.  As to the fourth requisite – wilfulness and
mala fides
– the Court took into account the following
considerations:
(a) The joint report established breaches of the consent order.
(b) The Commissioner failed to personally explain the non-compliance
but instead relied on the affidavit of Mr Masalesa.
(c) The Commissioner had filed an unsworn affidavit and maintained
that the agreement preceding the consent order was unlawful.
(d) The Commissioner had brought an unsubstantiated
counter-application which he later withdrew.
[38]
The Supreme Court of Appeal upheld CompSol’s appeal,
with costs, including costs of two counsel.  In upholding
CompSol’s
appeal, the Supreme Court of Appeal held that the
Commissioner failed to place facts to establish reasonable doubt of
his wilfulness
and
mala fides
.
[35]
The Court remarked that the Commissioner’s behaviour was
scandalous and deserved the strictest censure possible.
[36]
It considered the question raised by the Pretoria High Court
regarding the status of the consent order.  The Court held
that
CompSol proved its case beyond reasonable doubt, warranting
Mr Mkhonto’s committal to prison.
[37]
[39]
The Court set aside the Pretoria High Court’s order and
replaced it with an order declaring Mr Mkhonto in contempt of
paragraphs
1, 2, 5, and 6 of the consent order.  As mentioned
earlier, these orders related to the Commissioner’s failure to
process
medical accounts within a reasonable time; his failure to pay
accounts related to accepted claims within 75 days after their
submission
or acceptance of the liability of the claim; the failure
by the Commissioner to provide the status of each claim contained in
the
list of claims submitted by CompSol, within seven days after
receipt of that list; and his failure to provide necessary guidance

for the weekly meetings to fulfil their purpose of resolving queries,
disputes, and discrepancies in relation to the submitted
medical
accounts.  The Supreme Court of Appeal convicted the
Commissioner of contempt of court and sentenced him to three
months’
imprisonment suspended on condition he was not convicted of contempt
committed during the period of suspension.
[38]
Mr Mkhonto now seeks leave to appeal that decision.
[40]
In this Court, Mr Mkhonto has deposed to the founding
affidavit in support of the application for leave to appeal.  He
explains
that he was the Commissioner when the proceedings commenced
in the Pretoria High Court until the end of May 2015 and that he
became
the Chief Operations Officer in the Department of Labour from
1 June 2015.  As mentioned above, he explains why his

affidavit was unattested and why Mr Masalesa was best placed to
depose to the answering affidavit in the Pretoria High Court.
[39]
Save for stating that Mr Masalesa could not speak for the
Commissioner, the specific averments about Mr Masalesa’s

deposition to the answering affidavit remain uncontroverted.
Parties’
submissions
[41]
Mr Mkhonto supports the Pretoria High Court’s dismissal
of CompSol’s contempt application.  He argues that
contempt
proceedings were inappropriate because the settlement
agreement − made an order of court − did not impose
obligations
towards the Court.  He submits that there was no
need for a declaratory order to enforce a money order as there were
other
remedies available to CompSol.
[40]
[42]
It is submitted that Mr Mkhonto was not informed of the charge
and was not afforded the procedural safeguards ordinarily afforded
an
accused person to embrace a concept of substantive fairness as stated
in
Mamabolo
.
[41]
It is argued that the Commissioner’s office, including those of
its officials, deals with multitudes of claims and
is bound to assess
the veracity of the claims when settling them in terms of the
regulatory framework.
[42]
It is argued that the Supreme Court of Appeal’s
identification of the issue was too narrow and that
the declarations
of contempt and committal were inappropriate.  Mr Mkhonto
submits that, having regard to the content of the
affidavits, it was
apparent that there was no wilful default or malicious conduct on his
part.  His responsibilities as the
Commissioner, he submits,
must be measured against the statutory prescripts embodied in COIDA.
[43]
CompSol opposes the application for leave to appeal.  As
to whether the consent order was susceptible to contempt proceedings

at all as opposed to a writ of execution, CompSol submitted, at the
hearing, that while it was possible to issue a writ of execution
in
respect of medical accounts related to accepted claims that have not
been processed and paid within 75 days,
[43]
the issuance of a writ was not a viable option for medical accounts
related to claims that had not even been accepted by the
Commissioner.
[44]
This is so because they could not be quantified.
[44]
CompSol submits that there are no prospects of success.
It submits that the legal and factual bases for the findings of the

Supreme Court of Appeal are unassailable and that the legal basis
conforms to the jurisprudence of this Court.  As to the
status
of the order incorporating the consent order, that is to say the 75
day agreement, CompSol relied on the decision of this
Court in
Eke
,
[45]
where this Court held that “[o]nce a settlement agreement has
been made an order of Court, it is an order like any other.
It
will be interpreted like all court orders”.
[46]
Issues
[45]
Similarly to
Matjhabeng
, preliminary issues that arise
concern whether leave to appeal and condonation should be granted.
The key issue that arises
in
Mkhonto
is whether the requisites
for contempt of court were established against Mr Mkhonto.  The
further issues relate to—
(a) the non-joinder of Mr Mkhonto in his personal capacity;
(b) the status of the settlement order – whether the consent
order constitutes a court order susceptible to contempt, in

particular, whether the Supreme Court of Appeal was correct in
invoking
Eke
; and
(c) whether monetary claims may be enforced by way of contempt.
The law on
contempt of court
[46]
Before I deal with the issues in both cases, it is necessary
to discuss, briefly, the constitutional provisions on judicial
authority
and those regarding the binding nature of court orders; the
law regarding contempt with reference to case law (including the
general
distinction between civil and criminal contempt); and the
applicable standard of proof.
[47]
Section 165 of the Constitution, indeed, vouchsafes judicial
authority.
[47]
This section must be read with the supremacy clause of the
Constitution.
[48]
It provides that courts are vested with judicial authority, and
that no person or organ of state may interfere with the functioning

of the courts.  The Constitution enjoins organs of state to
assist and protect the courts to ensure, among other things, their

dignity and effectiveness.
[48]
To ensure that courts’ authority is effective, section
165(5) makes orders of court binding on “all persons to whom
and organs of state to which it applies”.  The purpose of
a finding of contempt is to protect the fount of justice by

preventing unlawful disdain for judicial authority.
[49]
Discernibly, continual non-compliance with court orders imperils
judicial authority.
[49]
Although our courts have dealt with the law of contempt over
the years, the approach on certain aspects regarding this form of
crime
remains unclear.  A formulation of a coherent
approach is thus necessary.  This is particularly so because a
certain
means of enforcement for non-compliance, including committal
to prison, may violate certain rights of the alleged contemnor,
including
the right to freedom and security of the person in terms of
section 12 of the Constitution, which includes the right “not

to be deprived of freedom arbitrarily or without just cause”
[50]
and the right “not to be detained without trial”.
[51]
[50]
It is important to note that it “is a crime unlawfully
and intentionally to disobey a court order”.
[52]
The crime of contempt of court is said to be a “blunt
instrument”.
[53]
Because of this, “[w]ilful disobedience of an order made in
civil proceedings is both contemptuous and a criminal offence”.
[54]
Simply put, all contempt of court, even civil contempt, may be
punishable as a crime.
[55]
The clarification is important because it dispels any notion that the
distinction between civil and criminal contempt of
court is that the
latter is a crime, and the former is not.
[51]
The Full Court in
Burchell
[56]
elucidates the criminal and civil features that can be intertwined in
contempt proceedings and serves as an example of how the
distinction
can exist.
[57]
In that case, Froneman J (as he then was) confirmed that
committal for civil contempt remains a form of a crime under the

Constitution, but also reaffirmed its purely civil character:
“Civil contempt proceedings have always had a dual nature and
the discussion thus far has focused only on its criminal aspect.
In
my judgment the perceived difficulties associated with its continued
treatment as a criminal offence should not prevent
attention being
given also to its purely civil character and the possible development
of the common law in that regard.  In
addition to its retention
as a criminal offence, albeit with a stricter standard of proof, the
potential effectiveness of issuing
a (civil) declaratory order that
an offending litigant is in contempt of a court order should not be
underestimated.  Such
a declaration would have as its purpose to
uphold the rule of law too, but even if shorn of its criminal
sanction or punishment
there is, in my view, no reason why other
civil sanctions may not attach to such an order.”
[58]
[52]
Although contempt is part of a broader offence, it can take
many forms, even though its essence “lies in violating the
dignity,
repute, or authority of the Court”.
[59]
Traditionally, contempt of court has been divided into two categories
according to whether the contempt is criminal or civil
in
nature.
[60]
These types of contempt are distinguished on the basis of the conduct
of the contemnor.  Criminal contempt brings the
moral authority
of the judicial process into disrepute and as such covers a
multiplicity of conduct interfering in matters of justice
pending
before a court.  It thereby creates serious risk of prejudice to
the fair trial of particular proceedings.  This
was the case in
Mamabolo
, which involved publication of scandalous remarks
against a judicial officer.
[61]
[53]
Civil contempt, in contrast, involves the disobedience of
court orders.  The continued relevance of the distinction
between
civil and criminal contempt also seems to lie, on occasion,
in the ability to settle the dispute and to waive contempt.
[62]
[54]
Not every court order warrants committal for contempt of court
in civil proceedings.
[63]
The relief in civil contempt proceedings can take a variety of forms
other than criminal sanctions, such as declaratory orders,
mandamus
,
and structural interdicts.  All of these remedies play an
important part in the enforcement of court orders in civil contempt

proceedings.
[64]
Their objective is to compel parties to comply with a court
order.  In some instances, the disregard of a court order
may
justify committal, as a sanction for past non-compliance.  This
is necessary because breaching a court order, wilfully
and with
mala
fides
, undermines the authority of the courts and thereby
adversely affects the broader public interest.  In the pertinent
words
of Cameron JA (as he then was) for the majority in
Fakie
:
“[W]hile the litigant seeking enforcement has a manifest
private interest in securing compliance, the court grants enforcement

also because of the broader public interest in obedience to its
orders, since disregard sullies the authority of the courts and

detracts from the rule of law.”
[65]
[55]
In
Fakie
, the Supreme Court of Appeal had occasion to
consider the nature of an application for contempt of court where the
Auditor-General
had partly failed to comply with an order of the
Pretoria High Court.
[66]
He was later held in contempt of court
[67]
and was sentenced to imprisonment, wholly suspended.
[68]
This is an example of the use of committal as a remedy and effective
sanction for contempt of court.
[56]
The common law drew a sharp distinction between orders
ad solvendam pecuniam
, which related to the payment
of money, and orders
ad factum praestandum
, which
called upon a person to perform a certain act or refrain from
specified action.  Indeed, failure to comply with the
order to
pay money was not regarded as contempt of court, whereas disobedience
of the latter order was.
[69]
[57]
In
Mjeni,
[70]
Jafta J (as he then was) endorsed the long line of judicial authority
that an order must be
ad factum praestandum
before the Court
can enforce it by means of committal.  The Court, correctly in
my view, endorsed that the objective of declaratory
relief for
contempt, for instance, is to vindicate the rule of law rather than
to “punish the transgressor”.
[71]
This does not, however, mean that a civil remedy of committal may not
be imposed against a contemnor for contempt of court
because, as
pointed out in
Fakie
, “disregard sullies the authority
of the courts and detracts from the rule of law”.
[72]
[58]
The procedure and processes for contempt proceedings seeking
committal should deviate from criminal prosecutions only to the
extent
necessary to make allowance for its unique status.  In
Pheko II
,
[73]
this Court endorsed the holding in
Fakie
that, because
contempt proceedings resulting in committal combine civil and
criminal elements, “it seems undesirable to strait-jacket
it
into the protections expressly designed for a criminal accused under
section 35(3) [of the Constitution]”.
[74]
Instead, the rights of a respondent where civil contempt is sought
are grounded in section 12(1)
[75]
of the Constitution which affords the alleged contemnors both
substantive and procedural protections.
[76]
I do not understand this to suggest that the rights of a
respondent where civil contempt resulting in committal is sought

cannot be grounded in section 35(3).
[59]
Because of its grounding in civil process, civil contempt is
indeed peculiar.  Some writers suggest that there may be
reasons,
therefore, for relaxing the requirements ordinarily expected
of criminal proceedings in order to accommodate its hybrid
status.
[77]
This is so because a finding of contempt, may, for instance, be made
even in motion proceedings and the rules of evidence
may take a shape
unlike those in criminal prosecutions.  These adaptations of
form do not, however, alter the constitutional
imperative that a
person’s freedom and security must be protected.
[60]
In relation to the proper standard of proof applicable in
contempt of court proceedings, there are divergent views on which
further
reflection and clarity are necessary.  One view is that
the criminal standard of proof – beyond reasonable doubt –

applies
always
.  The other view is that the standard of
proof is not always of a criminal standard.  The minority in
Fakie
hinted that the material difficulty in separating
coercive/remedial orders of imprisonment made in civil contempt
proceedings from
punitive orders is a challenge which recurs in
judgments in many jurisdictions.
[78]
It opined, and this is endorsed in
Pheko II
,
[79]
that the extension of the criminal standard in civil proceedings
would have harmful consequences.
[80]
In the following discussion I reference
Fakie
more
extensively because it is an instructive judgment in which Cameron JA
has ably outlined the law on contempt and how courts
have dealt with
it.
[61]
The issues before the Supreme Court of Appeal in
Fakie
included whether the standard of proof in those civil
proceedings, in determining whether the Auditor General was in
contempt,
was that of a balance of probabilities or beyond reasonable
doubt.
[81]
The majority considered the test for disobedience of a civil order
and dealt with the constitutional characterisation of
contempt of
court.
[82]
It held that the conclusion on what onus is applicable “cannot
be deduced as a matter of simple typology from the fact
that a public
prosecution is competent”.
[83]
Relying on the common law principle in
Beyers
,
[84]
it held that civil contempt has not divested itself of a criminal
dimension.  But, the Court stated, the question requires
a
broader approach.  According to the majority:
“Looming over the debate about the typology of contempt
committal is the more important question of constitutional
characterisation,
which the Eastern Cape decisions address: Does the
fact that imprisonment may be sought in committal proceedings purely
for enforcement
so affect the nature of the means employed that a
lesser standard of proof can be justified?  Differently put, do
constitutional
values permit a person to be put in prison to enforce
compliance with a civil order when the requisites are established
only preponderantly,
and not conclusively?  In my view, they do
not, and the Eastern Cape decisions that the criminal standard of
proof applies
whenever committal to prison for contempt is sought are
correct.”
[85]
[62]
The majority further held:
“It should be noted that developing the common law thus does
not require the prosecution to lead evidence as to the accused’s

state of mind or motive: Once the three requisites . . . have
been proved, in the absence of evidence raising
a reasonable doubt as
to whether the accused acted wilfully and
mala fide
, all the
requisites of the offence will have been established.  What is
changed is that the accused no longer bears a legal
burden to
disprove wilfulness and
mala fides
on a balance of
probabilities, but to avoid conviction need only lead evidence that
establishes a reasonable doubt.
There can be no reason why these protections should not apply also
where a civil applicant seeks an alleged contemnor’s committal

to prison as
punishment
for non compliance.  This is
not because the respondent in such an application must inevitably be
regarded as an ‘accused
person’ for the purposes of
section 35 of the Bill of Rights.  On the contrary, with respect
to the careful reasoning
in the Eastern Cape decisions, it does
not seem correct to me to insist that such a respondent falls or fits
within section
35.  Section 12 of the Bill of Rights grants
those who are not accused of any offence the right to freedom and
security of
the person, which includes the right not only ‘not
to be detained without trial’ but ‘not to be deprived of
freedom
arbitrarily or without just cause’.  This
provision affords both substantive and procedural protection, and an
application
for committal for contempt must avoid infringing it.
And, in interpreting the ambit of the right’s procedural
aspect, it seems to me entirely appropriate to regard the position
of
a respondent in a punitive committal proceedings as closely analogous
to that of an accused person; and therefore, in determining
whether
the relief can be granted without violating section 12, to afford the
respondent such substantially similar protections
as are appropriate
to motion proceedings.  For these reasons, the criminal standard
of proof is appropriate also here.
. . .
These expositions seem to me compelling.  A court in considering
committal for contempt, can never disavow the public dimension
of its
order . . . .  The punitive and public dimensions are therefore
inextricable: and coherence requires that the criminal
standard of
proof should apply in all applications for contempt committal.”
[86]
[63]
In summation, the majority affirmed the availability of civil
contempt, and that it passes constitutional muster in the form of a

motion court application adapted to constitutional requirements.
[87]
It stated that the respondent is not an accused person, but is
entitled to analogous protections as are appropriate to motion

proceedings.
[88]
The majority held that an applicant in contempt proceedings
must prove all the requisites of contempt beyond reasonable
doubt.
[89]
However, it stated that, “once the applicant has proved the
order, service or notice, and non-compliance, the respondent
bears an
evidential burden in relation to wilfulness and
mala fides
”.
[90]
[64]
Undeniably,
Fakie
has been followed in many decisions
of our courts because of its authoritative direction, sometimes in a
somewhat nuanced approach
especially regarding the question of the
standard of proof.  By way of an example, this Court in
Pheko
II
endorsed
Fakie
and held that, when the sanction is
committal, the standard of proof must be “beyond a reasonable
doubt”.
[91]
However,
Fakie
also endorses
Burchell
, in that
civil mechanisms designed to induce compliance, short of committal to
prison, are competent even when proved only on a
balance of
probabilities.
[92]
[65]
Indeed, this Court held in
Pheko II
that where a court
finds on a balance of probabilities that an alleged contemnor acted
mala fide
, civil contempt remedies, other than committal, may
still be employed.
[93]
This Court remarked:
“[W]here a court finds a recalcitrant litigant to be possessed
of malice on balance, civil contempt remedies other than committal

may still be employed.  These include any remedy that would
ensure compliance such as declaratory relief, a
mandamus
demanding the contemnor to behave in a particular manner, a fine and
any further order that would have the effect of coercing compliance.
. . .
While courts do not countenance disobedience of judicial authority,
it needs to be stressed that contempt of court does not consist
of
mere disobedience of a court order, but of the contumacious
disrespect for judicial authority.  On whether this Court should

make a civil contempt order against the Municipality, it is necessary
to consider whether, on a balance of probabilities, the
Municipality’s non-compliance was born of wilfulness and
mala
fides
.”
[94]
[66]
By way of illustration, a sanction that may be employed in a
finding of civil contempt on a balance of probabilities is that an
offending litigant be prohibited from using civil courts in pursuing
other claims.
[95]
Burchell
offers an example of an order that “attempts
to develop ancillary civil sanctions” where contempt is
established on
a balance of probabilities.
[96]
In that case, the applicant sought the committal of her
ex husband for non-compliance with his court-ordered maintenance

and associated obligations toward her and their children.  Although
the contemnor was not found to have acted in a wilful
or
mala fide
manner, beyond a reasonable doubt, the Court was of the view that the
respondent was in contempt of court on a preponderance of

probabilities.
[97]
He was therefore declared in contempt and granted 10 days from
the date of the judgment to purge the contempt, failing which
the
applicant could set the matter down, calling upon the respondent to
show cause why he should not be prohibited from proceeding
in any
other litigation in which he may be involved, while in contempt.
[98]
[67]
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 have
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
administration 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 interdict − 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 standard of
proof – a balance of probabilities – applies.
Issues
Preliminary
issues
[68]
Back to the issues.  I determine first the preliminary
issues applicable to both
Matjhabeng
and
Mkhonto
.
Those issues concern leave to appeal and condonation applications by
Eskom and CompSol, and will be disposed of quickly.
Leave to appeal
in Matjhabeng and Mkhonto
[69]
The applicants in both matters seek leave to appeal the
decisions of the Free State High Court and the Supreme
Court
of Appeal, respectively, on various grounds.
[99]
The two matters raise constitutional issues as the rights in terms of
sections 12(1) and 35(3) of the Constitution are implicated.

Since the matters relate to the enforcement of court orders, that
too, is a constitutional issue.
[70]
The rights of state officials alleged to be in contempt in
their personal capacities for actions they have allegedly taken or
allegedly
omitted to take, in their official capacities, are
important not only for the individual alleged to be in contempt, but
also for
the effective management of public administration, as well
as the rule of law.
[100]
Further reflections are necessary to clarify the law regarding
contempt of court post-1994.  The prospects of success
are
good.  It is thus in the interests of justice to grant leave to
appeal, in both applications.
Condonation
application (Matjhabeng)
[71]
Eskom seeks condonation for the late filing of its opposing
papers.  It is alleged that the attorney involved became
indisposed.
Also, Eskom contends that there was an error in the
Municipality’s notice of motion.  The delay is short and
the Municipality
does not oppose the application.  The
explanation is acceptable and there is no prejudice to the
Municipality.  It is
in the interests of justice to grant
condonation.
Condonation
application (Mkhonto)
[72]
Mr Mkhonto applies for condonation for the late filing of the
application for leave to appeal.  He submits that he required

additional time to seek the advice of his legal representatives as to
whether it would be advisable to proceed with the appeal.
He
further contends that because he is no longer the Commissioner he was
wary of incurring further legal costs.  CompSol opposes
the
application on the basis that Mr Mkhonto failed to disclose when
the judgment of the Supreme Court of Appeal
came to
his attention; when he contacted his legal representatives to seek
their advice; or when he actually consulted with them
in this
regard.  While Mr Mkhonto’s explanation for the delay is
not stated clearly, the interests of justice demand
that condonation
be granted, particularly because CompSol has not demonstrated that it
has suffered prejudice.  The two day
delay is minimal.
Key issues
Were the
requisites of contempt established in Matjhabeng?
[73]
Against the above backdrop, I now determine whether the
following requisites of contempt of court were established in
Matjhabeng
: (a) the existence of the order; (b) the order must
be duly served on, or brought to the notice of, the alleged
contemnor; (c)
there must be non-compliance with the order; and (d)
the non compliance must be wilful and
mala fide
.
[101]
It needs to be stressed at the outset that, because the relief sought
was committal, the criminal standard of proof −
beyond
reasonable doubt − was applicable.
[74]
The first and third requirements in relation to the second
consent order in
Matjhabeng
are not seriously disputed.
Mr Lepheana’s contention that failure to comply with the terms
of the second consent order
is not non-compliance with a court order,
but merely a breach of contract, is not sound.
Notice
[75]
It is not disputed, in relation to the Municipal Manager, that
he is the accounting officer, “tasked with overseeing the
implementation
of court orders against the [M]unicipality” and
the “logical person to be held responsible” for the
overall administration
of the Municipality.
[102]
There can be no doubt that, in that official capacity, the Municipal
Manager was aware of the obligation imposed on him by
the second
consent order.  That order was brought to the attention of the
Municipal Manager by the attorneys of the Municipality.
The
Municipal Manager also participated in meetings with the officials of
Eskom and, as the accounting officer, drafted and approved
the
payment plan.  From the facts, it is clear, that the Municipal
Manager was aware of the relevant orders.  But it
cannot safely
be said that the order imposed any obligations on Mr Lepheana in his
personal capacity.
Wilfulness and
mala fides
[76]
The next issue for determination is whether the non-compliance
on the part of Mr Lepheana was wilful and
mala fide
.  The
reason for these requirements lies in the nature of the contempt
proceeding and its outcome.  In order to give
rise to contempt,
an official’s non-compliance with a court order must be “wilful
and
mala fide
”.
[103]
In general terms, this means that the official in question,
personally, must deliberately defy the court order.  Hence,

where a public official is cited for contempt in his personal
capacity, the official himself or herself, rather than the
institutional
structures for which he or she is responsible, must
have wilfully or maliciously failed to comply.  As the
Supreme Court of Appeal
has held, “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”.
[104]
[77]
In the second consent order in
Matjhabeng
, the
Municipality was ordered to resume payments from July 2014, as
agreed, failing which the Municipal Manager was ordered to
report to
the Court, setting out the reasons for its failure to do so.
[78]
The Free State High Court seemed not to have considered the
explanatory affidavit by the Municipality, addressing instead only
the
issues raised by the Court in the rule
nisi
[105]
− explaining why the orders had not been complied with.
In particular, the Court did not consider various attempts
made by
the Municipal Manager and other senior personnel of the Municipality
to settle the dispute with Eskom.  In my view,
no case for
wilfulness and
mala fides
on the part of Mr Lepheana was
established.  The order of the Free State High Court should be
set aside.  That order
should be replaced with an order
dismissing the application.
Appropriateness
of summary procedure in Matjhabeng
[79]
The appropriateness of the summary contempt procedure in
Matjhabeng
also requires this Court’s attention.
The common law procedure for the commencement of contempt
proceedings, in cases
of contempt while a court is not sitting
(
ex facie curiae
)
[106]
− like in the present cases – contrasts with contempt
that occurs in or near a court.  The former has been described

as follows by the Appellate Division in
Keyser
:
“[I]n every case of contempt
ex facie curiae
dealt with
by our courts without a criminal trial, the proceedings were
commenced by an order, served upon the offender, containing

particulars of the conduct alleged to constitute the contempt of
court complained of, and calling upon the offender to appear before

the court and to show cause why he should not be punished summarily
for the alleged contempt of court.  Sometimes the order
has been
issued on the application of the Attorney General, sometimes it
has been issued by the court
mero motu
[of its own accord],
but in every case it has informed the offender of the case he has to
meet, and in every case it has allowed
him sufficient time to consult
counsel, to prepare his defence and to decide whether he will give
evidence on oath or not.”
[107]
This general
approach is constitutionally compliant.  It affords the
respondent procedural safeguards while ensuring that the
authority of
the court is vindicated.
[80]
It needs to be stressed that
Matjhabeng
was a case of
contempt
ex facie curiae
, dealt with by the Free State High
Court without a criminal trial.  The rule
nisi
was
granted on an
ex parte
basis and called on the Municipal
Manager – Mr Lepheana – to appear before the Court.
He had not been cited in
his personal capacity nor was he joined as a
party in that capacity.  Mr Lepheana was cross examined by
the Judge and
counsel for Eskom without evidence being led.  He
was not afforded an opportunity to comment on the allegations that
were
outlined by the Judge before he was cross examined and yet,
the invitation was extended to counsel for Eskom.  Mr Lepheana

was not personally represented and had not been forewarned that
committal to prison could be imposed.  Had Mr Lepheana known
of
the charge against him and understood that he might face committal,
he might have asked for a postponement so that he could
consult with
counsel, prepare his defence, and even consider whether he would
testify or not.
[81]
The procedure followed by the Free State High Court clearly
deprived Mr Lepheana of the hallmarks of procedural fairness in

terms of section 35(3) of the Constitution.  At the risk of
repetition, he was arbitrarily deprived of his rights in terms
of
section 12(1)(a) of the Constitution.  The circumstances in
Matjhabeng
did not warrant the summary procedure.  This
procedure may be invoked in exceptional circumstances,
[108]
where there is a “pressing need for firm or swift measures to
preserve the integrity of the judicial process”.
[109]
This will be the case also where ordinary prosecution at the instance
of the prosecuting authority is impossible or highly
undesirable.
But even then, and to the extent possible, the contemnor must be
accorded his or her fair trial rights.
Otherwise, as this Court
cautioned in
Mamabolo
:
“The alternative is constitutionally unacceptable:  It is
inherently inappropriate for a court of law, the constitutionally

designated primary protector of personal rights and freedoms, to
pursue such a course of conduct.”
[110]
Were the
requisites of contempt established in Mkhonto?
[82]
The requisites are set out above.
[111]
Likewise, in respect of
Mkhonto
, the standard of proof beyond
reasonable doubt is applicable, because the relief sought is
committal.
[83]
In
Mkhonto
, the Pretoria High Court rightly observed
that the Commissioner had denied non-compliance with the consent
order of 31 July 2009.
The denial is, in my view, in contrast
with the joint report of 6 August 2014.  This is where the
Commission and the applicants
admitted that they owe CompSol R93 903
293.08.
[112]
Notice
[84]
There can be no doubt that the Commissioner was aware of the
consent order as well as the obligations the order imposed on him, as

he personally signed that order.  But it cannot safely be said
that the order imposed any obligations on Mr Mkhonto in
his
personal capacity.  The question remains whether the
non compliance was wilful and
mala fide
.
Wilfulness and
mala fides
[85]
The Supreme Court of Appeal did consider the affidavits filed
on behalf of the Fund including the affidavit of Mr Masalesa in which

it was explained, among other things, that the Fund receives many
claims on a daily basis from medical practitioners, apart from

CompSol’s claims, but that priority had to be given to the
flood of CompSol’s claims.  Other claims suffered as
a
result.  When the applicants committed to the consent order,
CompSol had not revealed the multiplicity of the claims to
them.
As a result, the Commissioner did not “anticipate that the
flood of the claims would be a hindrance to the obligations
assumed
in the [consent order]”.
[113]
It was explained further that the reason for the failure to pay was
because of the logistical problems in the systems of
the financial
division of the Fund.  CompSol persists that Mr Mkhonto
should have deposed to the affidavit himself.
CompSol does not,
however, refute that Mr Masalesa − who was also
responsible for the daily activities regarding the
processing and
payments of claims − was better placed than the Commissioner to
deal with the difficulties experienced in
relation to claims
submitted by CompSol.  Moreover, CompSol does not deny that the
Commissioner relied upon Mr Masalesa and
other officials dealing with
claims.
[86]
In dealing with the explanation by Mr Masalesa, the Supreme
Court of Appeal merely remarked that the applicants “clearly
viewed
[CompSol’s] claims as a nuisance and the [consent order]
itself one which they could ignore”.
[114]
The observation, contrasted with the explanation given by Mr
Masalesa, seems speculative.  In my view, the averments
made in
the explanatory affidavit are telling and should have been
investigated by the Supreme Court of Appeal before committing
Mr
Mkhonto to prison.
[87]
In upholding CompSol’s appeal, the Supreme Court of
Appeal also held that the Commissioner’s behaviour was
“scandalous”
and deserved the “strictest censure
possible”.
[115]
In my view, the observation that the Commissioner’s behaviour
was “scandalous” overlooks the evidence.
Although
the Court was asked to measure the Commissioner’s
responsibilities against the statutory prescripts embodied
in COIDA,
it does not appear to me that the Supreme Court of Appeal considered
this plea.  Indeed, section 43 of COIDA regulates
claims for
compensation.  The Court held further that the Commissioner
failed to place facts to establish reasonable doubt
on his wilfulness
and
mala fides
.  It then concluded that CompSol proved
its case beyond reasonable doubt.
[88]
In the light of the explanation given by Mr Masalesa, I do not
agree that CompSol proved its case beyond reasonable doubt.
I
think that the explanation proffered does create doubt regarding
wilfulness and
mala fides
on the part of the Commissioner −
against whom the relief was sought.
[89]
In conclusion, no case for wilfulness and
mala fides
on
the part of Mr Mkhonto in his personal capacity has been made.
Consequently, the order of the Supreme Court of Appeal

should be set aside.  The effect of the setting aside of the
order of the Supreme Court of Appeal is that the
order
of the Pretoria High Court, per Hughes J, stands.
Non-joinder of
Messrs Lepheana and Mkhonto
[90]
A question of non-joinder was also raised.  On 3 December
2015, the Chief Justice issued directions inviting parties to

file written submissions on “whether municipal managers who
fail to give effect to court orders can be found guilty of contempt

in the absence of their joinder to the proceedings”.  It
is common cause that both Messrs Lepheana and Mkhonto were
convicted
and sentenced without having been joined as parties to the
proceedings.
[91]
At common law, courts have an inherent power to order joinder
of parties where it is necessary to do so even when there is no
substantive
application for joinder.  A court could,
mero
motu
, raise a question of joinder to safeguard the interest of a
necessary party and decline to hear a matter until joinder has been

effected.
[116]
This is consistent with the Constitution.
[92]
The law on joinder is well settled.  No court can make
findings adverse to any person’s interests, without that person

first being a party to the proceedings before it.
[117]
The purpose of this requirement is to ensure that the person in
question knows of the complaint so that they can enlist counsel,

gather evidence in support of their position, and prepare themselves
adequately in the knowledge that there are personal consequences
–
including a penalty of committal – for their non-compliance.
All of these entitlements are fundamental to ensuring
that potential
contemnors’ rights to freedom and security of the person are,
in the end, not arbitrarily deprived.
[93]
The principles which are fundamental to judicial adjudication,
in a constitutional order, were reaffirmed by this Court in its
recent
decision in
Lushaba
,
[118]
where the Court, per Jafta J, endorsed principles stated by Ackermann
J in
De Lange
:
“[F]air procedure is designed to prevent arbitrariness in the
outcome of the decision.  The time-honoured principles

that . . . the other side should be heard
[
audi alterem partem
], aim toward eliminating the
proscribed arbitrariness in a way that gives content to the rule of
law. . . .  Everyone
has the right to state
his or her own case, not because his or her version is right, and
must be accepted, but because in evaluating
the cogency of any
argument, the arbiter, still a fallible human being, must be informed
about the points of view of both parties
in order to stand any real
chance of coming up with an objectively justifiable conclusion that
is anything more than chance.
Absent these central and core
notions, any procedure that touches in an enduring and far-reaching
manner on a vital human interest,
like personal freedom, tugs at the
strings of what I feel is just, and points in the direction of a
violation.”
[119]
[94]
It follows that the objection of non-joinder by the
Municipality in
Matjhabeng
, specifically where the potential
contemnor’s section 12(1) rights are in the balance, is not a
purely idle or technical
one − taken simply to cause delays and
not from a real concern to safeguard the rights of those concerned.
There is
however a caveat: this should not be understood to suggest
that joinder is always necessary.  There may well be a situation

where joinder is unnecessary, for example, when a rule
nisi
is
issued, calling upon those concerned to appear and defend a charge or
indictment against them.  Undeniably, in appropriate

circumstances a rule
nisi
may be adequate even when there is a
non-joinder in contempt of court proceedings.  This means that
the rule is not inflexible.
[95]
Eskom invokes
Insamcor,
[120]
Meadow Glen
,
[121]
Hlophe
,
[122]
and
Pheko II
[123]
in support of its argument that the rule
nisi
either effected
joinder or was sufficient to give rise to waiver in this context.
I do not agree.  None of these cases
vindicate its contention.
Insamcor
arose in a markedly different context.  There,
the question was whether third parties who have a substantial and
peculiar
interest in an order of restoration in terms of section
73(6) of the Companies Act
[124]
should be joined to proceedings of that sort.
[125]
The Supreme Court of Appeal found that joinder was necessary, but
where the number of affected parties was substantial, the
issuing of
a rule
nisi
was sufficient to effect joinder.  In those
instances, because of the sheer volume of parties who could be
affected, the failure
to respond could be taken to equate to a waiver
of the right to be joined.
[126]
Even so, Brand JA cautioned:
“[S]ince failure to react to the rule
nisi
will give
rise to deemed consent, proper care should be taken in issuing
directions as to service of the rule.  Where a particular
third
party can be identified
a priori
as a necessary
party . . . service of the rule on that party
should be directed, while notice to unknown potentially
interested
parties can be ensured through publication of the rule.”
[127]
[96]
In the present case, not only was a criminal sanction in the
offing rather than a civil remedy to ensure compliance, but there is

also no legitimate apprehension over the number of parties cited.
In each of the present matters there was only one person
–
Mr Lepheana in
Matjhabeng
and Mr Mkhonto in
Mkhonto
– who should have been joined in their personal capacities so
that they could properly defend the indictments or charges
against
them.
Insamcor
is thus no authority for the proposition
that a rule
nisi
can in general be used as a substitute
for joinder in contempt proceedings.
[97]
In
Meadow Glen
, a group of residence associations
unsuccessfully sought to have the Municipality’s Director of
Housing Resource Management
imprisoned for failing to maintain a
fence and to ensure that there were adequate security guards to
monitor access to a settlement
that had been established in response
to unlawful evictions.
[128]
But in that case, the Director in question, Fanie Fenyani, was
directly cited by name and was served.
[129]
Meadow Glen
is thus no apposite authority for the proposition
that an order of contempt and committal to prison can be made against
an official
who is
not
cited in their personal capacity.
[98]
The reliance by Eskom on
Hlophe
is also
misconceived.
[130]
Hlophe
involved an eviction order with which the state had
failed to comply.  The Supreme Court of Appeal
[131]
held that for a finding to be made against state functionaries, in
their official capacities, there was no need for their offices
to be
cited from the outset.
[132]
However, the Mayor, City Manager, and Director had been joined as
parties when the
mandamus
was issued.  What’s more,
no order for contempt nor for committal were made against any of the
officials in their personal
capacities.
[99]
Finally, Eskom relies on
Pheko II
.  This reliance
is misguided, not least because the Court declined to make an order
of contempt as “the service of the
order upon the Municipality,
an essential element to a finding of contempt” was
absent.
[133]
While the Court did issue a rule
nisi
seeking submissions on
why the Mayor and Municipal Manager “should not be joined”
to the proceedings, this is
a far cry from ordering committal in the
absence of joinder.
[134]
Indeed, as the Court noted, joinder was sought “to ensure that
the relevant responsible officials of the Municipality
comply with
the future orders of this Court”, not to hold them in contempt
for past non-compliance.
[135]
The Court did issue directions calling on the Municipality’s
attorney individually to show cause why he should not
be held in
contempt.
[136]
The conduct at issue was spelt out.  No doubt was left about who
was at risk of a finding of contempt.
[100]
The issue of non-joinder, in relation to
Mkhonto
, was
raised by this Court at the hearing
mero motu
.  It had
not been raised
a quo
and as a result CompSol had not dealt
with it in its written submissions.  Resulting from the
questions at the hearing, CompSol
filed further submissions.  It
is in the interests of justice to allow the further submissions.
[101]
The further submissions do not, however, help CompSol’s
case because they, in point of fact, bolster the case of the
applicants
regarding non-joinder.  CompSol correctly submits
that, in its notice of motion, it did not seek an order directed
against
Mr Mkhonto personally.  The order sought, it
maintains, was against the first respondent – the
Commissioner.
CompSol therefore asks that the order of the
Supreme Court of Appeal be substituted with an order
declaring the
Commissioner (and not Mr Mkhonto) to be in contempt of
court and that an appropriate sanction be imposed.
[102]
When setting aside the Pretoria High Court’s order and
declaring Mr Mkhonto to be in contempt and sentencing him to
imprisonment,
the Supreme Court of Appeal took no pains to consider
the prejudice that befell Mr Mkhonto − specifically to
determine whether
he had been personally joined as a party.  The
Supreme Court of Appeal convicted and sentenced Mr
Mkhonto to
imprisonment even though he was not a party to the
contempt proceedings.  In my view, the procedure followed by the
Supreme
Court of Appeal violated Mr Mkhonto’s right “not
to be deprived of freedom arbitrarily or without just cause”
in
terms of section 12(1)(a) of the Constitution.
[103]
Bearing in mind, that the persons targeted were the officials
concerned − the Municipal Manager and Commissioner in their
official capacities − the non-joinder in the circumstances of
these cases, is thus fatal.  Both Messrs Lepheana
and
Mkhonto should thus have been cited in their personal capacities −
by name − and not in their nominal capacities.
They were
not informed, in their personal capacities, of the cases they were to
face, especially when their committal to prison
was in the offing.
It is thus inconceivable how and to what extent Messrs Lepheana and
Mkhonto could, in the circumstances,
be said to have been in contempt
and be committed to prison.
[104]
Additionally, on this ground, the Free State High Court and
the Supreme Court of Appeal ought not to have declared

Messrs Lepheana and Mkhonto, respectively, in contempt and to have
sentenced them to imprisonment.  The convictions and sentences

must therefore be set aside.
Further issues in
Mkhonto
[105]
In the view I take of the matter, particularly given that the
enquiry is limited to the appropriateness of the remedy of contempt

of court and the sanction of committal in the circumstances of these
applications, it is not necessary to deal with the further
issues in
Mkhonto
regarding the status of the settlement order and
whether monetary claims may be enforced by way of contempt
proceedings.
Costs
[106]
Although the applicants in both cases are successful, the
manner in which the officials concerned dealt with their obligations
following
their undertakings,
vis-à-vis
the consent
orders, leaves much to be desired.  This Court’s
displeasure should be marked by depriving them, as successful

litigants, of their costs in this Court.  In the circumstances,
it will be just and equitable for each party to pay its own
costs.
Order
[107]
Under CCT 217/2015 (
Matjhabeng Local Municipality v Eskom
Holdings Limited and Others
), the following order is made:
1. Leave to appeal is granted.
2. Condonation is granted.
3. The appeal is upheld.
4. Paragraphs 1 and 2 of the order of the High Court of South Africa,
Free State Division, Bloemfontein are set aside and are replaced
with
an order dismissing the application.
5. Each party is to pay its own costs in this Court.
[108]
Under CCT 99/2016 (
Shadrack Shivumba Homu Mkhonto and
Others v Compensation Solutions (Pty) Limited
), the following
order is made:
1. Leave to appeal is granted.
2. Condonation is granted.
3. The appeal is upheld.
4. Paragraphs (a) and (b) of the order of the Supreme Court of Appeal
are set aside.
5. Each party is to pay its own costs in this Court.
For Matjhabeng Local
Municipality (in CCT 217/15): W R Mokhare SC and A E Ayayee
instructed by Majavu Attorneys
For Eskom Holdings
Limited (in CCT 217/15): M Khoza SC and N Moloto instructed by
Phatshoane Henney Incorporate
For Shadrack Shivumba Homu
Mkhonto, Compensation Commissioner, Director-General, Department
of Labour, and
Minister of Labour (in CCT 99/16): N A Cassim SC,
S K Hassim SC, and M A Dewrance instructed by the State Attorney,
Pretoria
For Compensation
Solutions (Pty) Limited (in CCT 99/16): P G Robinson SC, instructed
by Quiryn Spruyt Attorneys
[1]
Matjhabeng Local Municipality v Eskom Holdings Limited
unreported
judgment of the High Court of South Africa, Free State Division,
Bloemfontein, Case No 924/13 (19 February 2015) (Free
State High
Court judgment).
[2]
Compensation Solutions (Pty) Ltd v Compensation Commissioner
[2016] ZASCA 59
; (2016) 37 ILJ 1625 (SCA) (Supreme Court of
Appeal judgment)
.
[3]
The first consent order incorporates the deed of settlement.
[4]
For completeness, the second consent order reads:
“1. The court set aside the order granted on 28 March 2013 by
the Honourable His Lordship Daffue.
2. The [Municipality] to provide [certain copies and documents set
out in 2.1 to 2.11] by 6 August 2014;
. . .
3. The parties to enter into consultations commencing on 12 August
2014, to be concluded on 19 August 2014, and to report to
the above
Honourable Court on or before 11 September 2014 the position of the
disputes between the parties, including the [interest]
rate to be
charged on arrears.
4. The [Municipality] to resume payments of the current account for
electricity supplied during July 2014 and thereafter on due
date,
failing which, the municipal manager is directed to report to the
above Honourable Court reasons therefor within 14 calendar
days of
the default.
5. The [Municipality] to pay arrears that have accrued since June
2013, together with interest
a tempore morae
[interest
running from the date of judgment]
,
on payment terms to be
agreed between the parties in terms of the provisions of clause 3 of
this order, failing such agreement
or payment, first respondent
shall be entitled to terminate the supply of electricity after
following due procedure in terms
of the
Promotion of Administrative
Justice Act 3 of 2000
.
6. The [Municipality] to pursue payment of whatever amount it
expects from SARS [South African Revenue Service], to keep

first respondent informed of such steps and to make payment to the
first respondent within 3 days of the applicant receiving
it.
7. The [Municipality] to disclose to the first respondent and the
above Honourable Court the status of money collected from end
users,
in lieu of electricity usage, from June 2013 to present, and what it
has been utilised for before or on 6 August 2014.
8. The [Municipality] pay interest of 15.5%
a tempore morae
on all amounts for electricity consumption effective July 2014.
9. Any one of the parties shall be entitled to approach the court
for any unresolved dispute within 120 days of the conclusion
of the
consultations contemplated in paragraph 3 of this order.
10. Costs are reserved.”
[5]
Per Daffue J who had granted the first consent order.
[6]
Free State High Court judgment above n 1 at para 49.
[7]
Id at para 27.
[8]
Id at para 54.
[9]
The grounds of appeal included non-joinder and inappropriateness of
the conviction and sentence in respect of monetary debt –
in a
situation where the judgment could be enforced through execution in
terms of the applicable Uniform Rules of Court.
Further, it
was contended that Eskom failed to make a case that the Municipal
Manager willingly and in bad faith disobeyed the
second consent
order and was therefore guilty of contempt.  Mr Lepheana
implored the Court to consider his affidavit appended
to the
application for leave to appeal.
[10]
Mansell v Mansell
1953 (3) SA 716
(N) at 721B-F where the
Court held:
“Where persons enter into an agreement, the obligee’s
remedy is to sue on it, obtain judgment and execute.  If
the
agreement is made an order of Court, the obligee’s remedy is
to execute merely.  The only merit in making such
an agreement
an order of Court is to cut out the necessity for instituting action
and to enable the obligee to proceed direct
to execution.  When,
therefore, the Court is asked to make an agreement an Order of Court
it must, in my opinion, look at
the agreement and ask itself the
question: ‘Is this the sort of agreement upon which the
obligee (normally the plaintiff)
can proceed direct to execution?’
If it is, it may well be proper for the Court to make it an
order.  If it
is not, the Court would be stultifying itself in
doing so.  It is surely an elementary principle that every
Court should
refrain from making orders which cannot be enforced.
If the plaintiff asks the Court for an order which cannot be
enforced,
that is a very good reason for refusal to grant its
prayer.”
[11]
S v Mamabolo
[2001]
ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) (
Mamabolo
).
[12]
Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA) (
Fakie
).
[13]
Pheko v Ekurhuleni Metropolitan Municipality
(No 2)
[2015] ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) (
Pheko
II
).
[14]
130 of 1993.  COIDA entitles employees injured on duty to claim
compensation for their incurred medical costs.
[15]
The Director-General’s role in terms of section 4(1)(j) of
COIDA is to determine the tariffs of fees according to which

consultation fees can be recovered.
[16]
Employees injured on duty submit their claims for compensation to
the Compensation Fund (Fund) established in terms of section
2(1)(a)
of COIDA.  The Fund adjudicates the claims and either rejects
or accepts them.  Once the Fund has accepted
liability for a
claim, the employee is entitled to be compensated for all medical
expenses (medical accounts) related to his
or her injury, provided
that the Fund finds these expenses to fulfil the tariff and other
legal requirements.  To that effect,
the Fund verifies each
medical account individually and processes the account for payment,
if the account is accepted.
[17]
For completeness the consent order reads, in relevant parts:
“1. The [Commissioner] shall process medical accounts
submitted to him in relation to medical aid provided to employees
by
medical practitioners, as envisaged in [COIDA] within a reasonable
time from the submissions of such accounts.
2. In respect of the submission of a medical account relating to a
claim which has been accepted (i.e. the [Commissioner] has
accepted
liability for the claim), and in respect of a medical account
submitted after such acceptance, a reasonable time for
the
[Commissioner] to process, validate and effect payment of such
validated medical accounts is within 75 days of the acceptance
of a
claim, or where this occurs after acceptance of the claim, the date
of submission of such accounts.  For avoidance
of doubt, it is
recorded that in respect of medical accounts submitted before
acceptance of a claim, the 75 days will be calculated
from the date
of the acceptance of the claim.
3. The [Commissioner] shall process the backlog of medical accounts
referred to in Annexure JL12, at page 88 of the record
in this
application, by 30 October 2009.
4. The [Commissioner] shall pay [CompSol] interest at the current
legal rate of interest (being 15.5 per cent per annum) on all

currently outstanding medical accounts to which the letter of demand
dated 25 March 2009 (record, pages 88-9) relates, from such
date of
demand to the date of payment of each such respective account.
5. [CompSol] will submit a CD to the [Commissioner] on a fortnightly
basis containing a list of claims, and the [Commissioner]
shall
provide the status of each claim, and where the claim has been
accepted, the date of such acceptance, to [CompSol] within
7 (seven)
days of receipt of the CD.
6. The parties record their mutual commitment to a functional
process in relation to claims and medical accounts submitted to

[CompSol], a good working relationship in that regard.
Accordingly to resolve any queries, disputes or discrepancies in

relation to medical accounts submitted for payments, [CompSol] and
the [Commissioner] or his designated representatives shall
meet
weekly at the latter’s Port Elizabeth offices.
7. This agreement shall apply equally to the [Director-General] as
the party principally responsible for compliance with the
obligation
in performance of the functions set out in the Act.
8. The Respondents [Commissioner, Director-General, and Minister]
shall pay the party and party costs of this application as
taxed or
agreed, including the costs of two counsel.
9. The Respondents [Commissioner, Director-General, and Minister]
consent to this agreement being made an order of court.
10. The parties accept the above undertakings in settlement of the
above application.
11. This agreement and its contents are confidential to the
parties.”
[18]
The applications were heard on 19 January 2010.
[19]
In terms of that application, CompSol sought an order to hold the
Commissioner in contempt and for committal to prison for his
failure
to process and pay assessed and validated medical accounts within 75
days in terms of paragraph 2 of the consent order,
as well as his
lack of cooperation regarding the weekly meetings required to be
held in terms of paragraph 6 of the consent order.
[20]
Above n 17.
[21]
Id.
[22]
The five solutions were: the acquisition of software to process the
claims; the conclusion of an advance payment agreement; the

outsourcing of the processing of accounts to a medical service
company; a tender to perform a forensic audit of the Fund and
design
a turnaround strategy; and the appointment – on an interim
basis – of Rand Mutual Assurance Company Limited
(RMA), a
non-profit mutual assurance company licensed under COIDA to process
mining and forestry COIDA compensation claims, to
assist the Fund in
processing the backlog.
[23]
In terms of this agreement: CompSol would compile lists containing
details of each medical aid account; the Commissioner would
pay the
full amount within ten days of receipt of the lists; the
Commissioner would make payment in the course of the normal
process,
thereby ending up paying twice; and CompSol would thereafter
reimburse the Commissioner where double payments were made.

The APA was cancelled by the Commissioner because the
Auditor-General had advised him that the agreement was unlawful and
in
breach of the
Public Finance Management Act 1 of
1999
.  Subsequently, in a letter dated 18 April 2013, CompSol
suggested a reinstatement of the APA as a viable solution to the

dispute.
[24]
40 of 2002.
[25]
Compensation Solutions (Pty) Ltd v Compensation Commissioner
unreported judgment of the High Court of South Africa,
Gauteng Division, Pretoria, Case No. 43830/13 (17 December
2014)
(Pretoria High Court judgment) at para 3.
[26]
Id at para 17.
[27]
Federation of Governing Bodies for South African Schools (FEDSAS)
v Member of the Executive Council for Education, Gauteng
[2016]
ZACC 14
;
2016 (4) SA 546
(CC);
2016 (8) BCLR 1050
(CC) (
Federation
).
[28]
Pretoria High Court judgment above n 25 at para 26.
[29]
As to the counter-application – that the consent order was
unlawful and should be set aside – the Court held that
the
issue was academic because the Commissioner had complied and made
payment during the course of the proceedings of the contempt

applications.  It thus dismissed the counter-application with
costs.  The Court also dismissed CompSol’s application

for contempt of court with costs.
[30]
Pretoria High Court judgment above n 25 at para 31.2 included an
order that the counter-application of Mr Mkhonto be withdrawn

with costs.
[31]
Supreme Court of Appeal judgment above n 2 at paras 15-6.
[32]
Id at para 17.
[33]
Id at para 18.
[34]
Fakie
above n 12.
[35]
Supreme Court of Appeal judgment above n 2 at para 20.
[36]
Id.
[37]
Id.
[38]
Id at para 21.
[39]
Above at [37].
[40]
Reliance is placed on what this Court said in
Pheko II
above
n 13 at para 37.
[41]
See
Mamabolo
above n 11 at para 53.
[42]
COIDA above n 14
sections 38
and
43
.
[43]
In terms of para 2 of the consent order.
[44]
In terms of para 1 of the consent order.
[45]
Eke v Parsons
[2015]
ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC).
[46]
Id at para 29.
[47]
Pheko II
above n 13 at para 26.
[48]
Section 2 of the Constitution.
[49]
See
Mamabolo
above n 11 at para 24.
[50]
In terms of section 12(1)(a).
[51]
In terms of section 12(1)(b).
[52]
Fakie
above n 12 at para 6.  See also
S v Beyers
1968 (3) SA 70
(A) (
Beyers
).
[53]
Meadow Glen Home Owners Association v City of Tshwane
Metropolitan Municipality
[2014] ZASCA 209
;
2015 (2) SA 413
(SCA) (
Meadow Glen
) at para 35.
[54]
Pheko II
above n 13 at paras 28 and 30.
[55]
Id.
[56]
Burchell v Burchell
[2005] ZAECHC 35.
[57]
See also
Fakie
above n 12 at paras 16-7.
[58]
Burchell
above n 56 at para 27.
[59]
Fakie
above n 12 at para 6.
[60]
Miller
Contempt of Court
3 ed (OUP, New York 2000) at 1.04.
[61]
Mamabolo
above n 11.  In this case the Department of
Correctional Services disobeyed an order granted by the High Court
for the release
of Mr Terre’Blanche, who was the leader of the
Afrikaner Weerstandsbeweging (AWB).  The Department’s
spokesperson
was reported in a newspaper article as having said that
the order was erroneously granted.  Having seen the article,
the
Judge who had granted the order issued a rule
nisi
calling upon the Director-General and the spokesperson to appear
before him, on a particular date, together with their legal

representatives.  The two officials appeared and were
represented by a senior and junior counsel.  They had also

filed affidavits explaining why they failed to comply with the
order.  The inquiry commenced with the Judge outlining facts

and showing that the order was not complied with.  He then
asked counsel for the applicant to confirm the correctness of
those
facts but did not extend the invitation to counsel for the
officials.  In assessing the constitutionality of the
procedure, this Court remarked that the two accused persons enjoyed
the fair trial rights in section 35(3) of the Constitution.
[62]
In some instances, the prevailing public interest may justify that a
court initiates civil contempt procedures
mero motu
(of its
own accord).  This was, for example, the case in
Pheko II
,
where the contempt proceedings were a sequel to the supervisory
relief that the Court had previously granted.  See
Pheko II
above n 13 at para 3.
[63]
See
Burchell
above n 56 at para 34. See also
Cape Times
Ltd v Union Trades Directories (Pty) Ltd
1956 (1) SA (NPD) at
120A-C.
[64]
Burchell
above n 56 at para 34.  See also
Fakie
above n 12.
[65]
Fakie
above n 12 at para 8.  See also
Pheko II
above n 13 at para 1.
[66]
By Hartzenberg J, in which he issued an order requiring the
Auditor-General to provide the respondent, CCII with specified

records within 40 court days.  Part 1.1 of the order required
the Auditor-General to provide draft versions of the report
that was
prepared and submitted to Parliament.  The second part of the
order required the Auditor-General to furnish CCII
with certain
files the disclosure of some of which he did not object to.
This part of the order was complied with only
after the CCII
contempt application was filed.
[67]
By De Vos J.
[68]
The dispute originated from a Cabinet decision to procure military
equipment that included four corvettes.  CCII was a partially

successful bidder for the sub-contract.  The widespread claims
regarding the irregular procurement process resulted in the

Parliamentary Standing Committee on Public Accounts appointing the
Auditor-General, Public Protector, and National Director of
Public
Prosecutions (the joint investigating team) to investigate the
allegations of corruption.  The joint investigating
team
presented a joint report to the President.  The report was
accepted by Parliament.  Dissatisfied with the report,
CCII
unsuccessfully asked for certain documentation that was considered
by the joint investigating team.  It then instituted

proceedings as a result of which the Auditor-General was ordered to
provide the specified records within 40 days.  When
it failed
to do so, CCII launched successful contempt proceedings with the
resultant conviction and wholly suspended imprisonment.
[69]
See
Coetzee v Government of RSA; Matiso v Commanding Officer,
Port Elizabeth Prisons
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995
(10) BCLR 1382
(CC) (
Matiso
) at para 61.
[70]
Mjeni v Minister of Health and Welfare, Eastern Cape
2000 (4)
SA 446
(Tk HC) at 451D-E.
[71]
Id at 456B-C.
[72]
Fakie
above n 12 at para 8.
[73]
Pheko II
above n 13 was about an order granted in favour of
applicants whose homes had been demolished at the behest of the
Ekurhuleni
Metropolitan Municipality (Ekurhuleni).  The parties
were ordered to submit reports to this Court for it to supervise
progress
made towards securing adequate housing for them.
Initially, the case only concerned contempt proceedings against
Ekurhuleni
for failing to comply with the order directing it to file
a second progress report by a certain deadline.  Further issues

arose before the hearing when an application for the joinder of
Ekurhuleni’s mayor and municipal manager was lodged.

When submissions were made at the hearing that Ekurhuleni was not
made aware by its attorney of the order and directions, further

directions were issued calling upon the attorney to show why they
should not be held in contempt and responsible to pay costs
de bonis propriis
(out of one’s own
pocket).  The Mayor and municipal manager were also called upon
to show cause why they should not
be joined to the contempt
proceedings and to indicate if there were any other responsible
office bearers who should be joined.
The Member of the
Executive Council, Gauteng Department of Human Settlements was also
called upon to show cause why he should
not be joined in the
contempt proceedings.
[74]
Fakie
above n 12 at para 26, relied on in
Pheko II
above n 13 at para 36.
[75]
See
Fakie
above n 12 at para 24.  Compare the discussion
in
Burchell
above n 56 at para 8, and
Mamabolo
above n
11 at para 53.
[76]
See
Fakie
above n 12 at paras 24-6.
[77]
Id at para 26.
[78]
Id at para 72 (minority judgment of Heher JA).
[79]
Pheko II
above n 13 at para 36.
[80]
Referencing what this Court said in
Bannatyne v Bannatyne
[2002]
ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR 111
(CC) as an example,
the minority in
Fakie
remarked:
“In my experience the ordinary litigants (often indigent
women) find it difficult enough under present procedures to pin
down
a party who is determined to avoid the consequences of a judgment.
Absence of wilfulness and
mala fides
are frequently highly
subjective and the respondent’s protestations often serve to
carry the day, particularly as these
are matters within his own ken
and the applicant seldom has the means to pursue the enquiry with
the necessary vigour.
If the onus were to be increased to one
beyond reasonable doubt the efficacy of the remedy, (and within it
the worth of a civil
judgment) would be reduced, to the detriment of
justice.”
[81]
Fakie
above n 12 at para 5.
[82]
Id at para 9.
[83]
Id at para 17
.
[84]
Beyers
above n 52 at 80D-H.
[85]
Fakie
above n 12 at para 19.
[86]
Id at paras 23-5 and 39-40.
[87]
Id at para 42(a).
[88]
Id at para 42(b).
[89]
Id at para 42(c).
[90]
Id at para 42(d).
[91]
Pheko II
above n 13 at paras 35-6.
[92]
Fakie
above n 12 at para 17.
[93]
Pheko II
above n 13 at para 37.
[94]
Id at paras 37 and 42.
[95]
Burchell
above n 56 at para 27.
[96]
Id.
[97]
Id at paras 33-4.
[98]
Id at para 35.  The Court further ordered that:
“The applicant may . . . within 10 days of the date of this
judgment, set the matter down . . . for
argument
on whether the matter should be referred to oral evidence on the
issue of whether the respondent wilfully disobeyed
the court order
of 3 June 2004, for the purpose of determining whether the
respondent should be committed to gaol for the crime
of contempt of
court.”
[99]
These include that cases for contempt of court were not established
and that the summary procedure (in
Matjhabeng
) utilised by
the courts
a quo
did not have the minimum features necessary
to satisfy the requisites of a fair trial.
[100]
See
Pheko II
above n 13 at para 1 and
De Lange v Smuts
N.O.
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC)
at para 31.
[101]
Pheko II
above n 13 at para 32.
[102]
Meadow Glen
above n 53 at para 24.
[103]
Pheko II
above n 13 at para 32.
[104]
Meadow Glen
above n 53 at para 20.
[105]
Specifically:
“(a) Why [the Municipality] has not kept up with payments for
the current electricity consumption as contemplated in paragraph
4
of the Court order of 31 July 2014 [second consent order];
(b) Having regard to the reports in the [Municipality’s]
possession and contained in pages 407 to 437 of the application,

when and what steps the [Municipality] has taken to address the
issues raised in those reports;
(c) Why the amount in paragraph 1 should not be payable no later
than 31 March 2015 having regard to the [Municipality’s]

history of non-compliance with the Court orders of March 2013 [first
consent order that was set aside in the second consent order]
and
July 2014 [second consent order]; and
(d) Why the municipal manager should not be held in contempt of
Court for non-compliance with the order of 31 July 2014 [second

consent order].”
[106]
That is to say, contempt of court that does not occur in the
presence of the court while it is sitting is contempt
ex facie
curiae
, in contrast to contempt that occurs in or near the
court.  See
R v Magerman
1960 (1) SA 184
(O) at 189.
[107]
R v Keyser
1951 (1) SA 512
(A) (
Keyser
) at 518E-H,
followed in
S v Mabaso
1990 (1) SACR 675
(T) at 678.
[108]
For example,
In re:
Chinamasa
2000 (12) BCLR 1294
(ZS), in which the exceptional circumstances involved a scenario
where ordinary prosecution at the instance of the prosecuting

authority was deemed to be impossible or highly undesirable.
[109]
See
Mamabolo
above n 11 at para 57.
[110]
Id at para 58.
[111]
Above at [73].
[112]
Pretoria High Court judgment above n 25 at para 9.
[113]
Supreme Court of Appeal judgment above n 2 at para 17.
[114]
Id at para 18.
[115]
Id at para 20.
[116]
Occupiers of ERF 101, 102, 104 and 112, Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd
[2009] ZASCA
80
;
2010 (4) BCLR 354
(SCA) at paras 11-2.
[117]
This was stressed in
Mjeni
above n 70 at 454G-H where Jafta J
held:
“[C]ontempt of court proceedings can only succeed against a
particular public official or person if the order has been

personally served on him or its existence brought to his attention
and it is his responsibility to take steps necessary to comply
with
the order but he wilfully and contemptuously refuses to comply with
the court order.”
[118]
Member of the Executive Council for Health, Gauteng v Lushaba
[2016] ZACC 16
;
2017 (1) SA 106
(CC);
2016 (8) BCLR 1069
(CC)
(
Lushaba
) at para 15
.
[119]
De Lange
above n 100 at para 131.
[120]
Insamcor (Pty) Ltd v Dorbyl Light & General Engineering (Pty)
Ltd, Dorbyl Light & General Engineering (Pty) Ltd v Insamcor

(Pty) Ltd
[2007] ZASCA 6
;
2007 (4) SA 467
(SCA) (
Insamcor
).
[121]
Meadow Glen
above n 53.
[122]
City of Johannesburg Metropolitan Municipality v Hlophe
[2015]
ZASCA 16
;
[2015] 2 All SA 251
(SCA) (
Hlophe
).
[123]
Pheko II
above n 13.
[124]
61 of 1973.
[125]
Insamcor
above n 120 at para 27.
[126]
Id at para 28.
[127]
Id at para 29.
[128]
Meadow Glen
above n 53 at paras 2, 11, and 13-5.
[129]
Id at para 25.
[130]
Hlophe
above n 122.
[131]
Per Van der Merwe AJA.
[132]
Hlophe
above n 122 at para 22.
[133]
Pheko II
above n 13 at para 39.
[134]
Id at para 15.
[135]
Id at para 14.
[136]
Id at para 13.