BASIC PRINCIPLES APPLICABLE TO CONTEMPT OF COURT PROCEEDINGS
The dual purpose of civil contempt proceedings
The Constitutional Court (CC) in Zuma, in both the majority and minority judgments gave effect to these principals. The majority judgment however provided for a specific exception to these principals, i.e. where it is a foregone conclusion that a coercive order would yield no reward.
This principal should in itself precludes the court a quo from handing down a purely punitive order and as such the Labour Court (LC) has inter alia held that:
• ‘In the case of contempt of court, the applicable penalty to be imposed can be a period of imprisonment, a fine, or both. … But even if punishment is to be dispensed, I believe that punishment must however always have a purpose. Punishment for the sake of punishment has no point.’ (KPMM Road and Earthworks (Pty) Ltd v Association of Mineworkers and Construction Union & others (2018) 39 ILJ 609 (LC))
• ‘The primary aim of contempt proceedings was to ensure compliance and not to punish’ (Orthocraft (Pty) Ltd t/a Advanced Hair Studios v Musindo & another (2016) 37 ILJ 1192 (LC))
• ‘The twofold object of contempt proceedings concerning the unlawful and intentional refusal or failure to comply with an order of court is the imposition of a penalty in order to vindicate the court’s authority following the disregard of its order and, or alternatively, to ensure compliance with the order. Usually, the latter is an issue of greater concern, particularly where the underlying dispute is a matter between private parties with no broader public interest ramifications.‘ (Pikitup Johannesburg (Pty) Ltd v SA Municipal Workers Union & another (2016) 37 ILJ 1710 (LC) at para 25)
Establishing the requirements to demonstrate contempt of a court order.
The general principles applicable to contempt applications was set out by the Supreme Court of Appeal (SCA) in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 22 (CCII Systems) in the following terms:
‘The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids infraction. Even a refusal to comply that which is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). These requirements – that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court, but by the deliberate and intentional violation of the court's dignity, repute or the authority that this evinces.'
In H v M 2009 (1) SA 329 (W) at para 12, it was held that the existence of mala fides is really a question of whether dolus exists and went on to say:
‘Insofar as dolus is concerned, it has long been recognised that where a person deliberately closes his or her eyes for what the law requires, dolus in the form of at least dolus eventualis will be found to have existed. In S v De Blom it was held that, once the act has been proved, an inference may be drawn, depending on the circumstances, that the act was done intentionally, with knowledge of unlawfulness. If the accused wishes to rely on a defence it would succeed if a reasonable possibility exists, on the evidence as a whole, that the accused did not know that his act was unlawful.’
7. The CC further in Pheko & others v Ekurhuleni Metropolitan Municipality & another 2015 (5) SA 600 (CC) at para 28 (Pheko) dealt with the ratio in CCII Systems and then summarized the position where it comes to considering whether contempt of court exists, as follows:
‘Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of the court or its officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders. This case deals with the latter, a failure or refusal to comply with an order of court. Wilful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence. The object of contempt proceedings is to impose a penalty that will vindicate the court's honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order.’
The CC in Pheko then concluded that:
‘The term civil contempt is a form of contempt outside of the court, and is used to refer to contempt by disobeying a court order. Civil contempt is a crime, and if all of the elements of criminal contempt are satisfied, civil contempt can be prosecuted in criminal proceedings, which characteristically lead to committal. Committal for civil contempt can, however, also be ordered in civil proceedings for punitive or coercive reasons. Civil contempt proceedings are typically brought by a disgruntled litigant aiming to compel another litigant to comply with the previous order granted in its favour.’
The LC in South African Municipal Workers Union & others v Thaba Chweu Local Municipality & another [2015] ZALCJHB [31] at para 27, further surmised the position as follow:
‘Therefore, and in terms of the ratio in CCII Systems, for this Court to be satisfied that a respondent in a contempt application is indeed in contempt of Court, the Court must be satisfied, beyond reasonable doubt, that:
(1) there was a refusal to comply with the Order;
(2) this refusal was wilful (deliberate); and
(3) the deliberate refusal to comply must be mala fide, in other words there must be a complete absence of any kind of bona fide justification for the refusal to comply (even if this justification relied on is ultimately found to be objectively unreasonable or unsustainable).
Crystalized down to its simplest terms, a respondent is in contempt where the respondent knows and understands the terms of the order and what is required to be done to comply with the order, but then without any cause or justification deliberately does not comply. This is what the Labour Court in fact held in National Union of Mineworkers and Others v B K H Mining Services CC t/a Dancarl Diamond Mine and Others (1999) 20 ILJ 885 (LC) para 4. where it was said: “…. What must be proved according to that standard is:
(a) that an order of court was granted against the respondents,
(b) that the respondents were aware of the order and its terms,
(c) that the respondents were in fact in breach of the order and, if so,
(d) that their failure to comply with the order was wilful.”’
The citing of a natural person in contempt proceedings
The LAC in Ncanana v Dual Products International (SA) CC [2019] 11 BLLR 1238 (LAC) at para 19, to this end clarified tha:
‘Notwithstanding the joinder of Mr. Koen it cannot be said to have been unreasonable in the circumstances, in particular since the conduct attributed to him is reasonably susceptible of being constructed, at least prima facie, as aiding and abetting a wilful non-compliance with the certified award. As has been held by the Constitutional Court in Pheko and Others v Ekurhuleni Metropolitan Municipality: “When a court order is disobeyed, not only the person named for the party to the suit but all those who, with the knowledge of the order, aided and abetted the disobedience or wilfully, are party to the disobedience [and] are liable. The reason for extending the ambit of contempt proceedings in this manner is to prevent any attempt to defeat and obstruct the due process of justice and safeguard its administration. Differently put, the purpose is to ensure that no one may, with impunity, wilfully get in the way of, or otherwise interfere with, the due course of justice or bring the administration of justice into disrepute.’
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