By: President Sambo
The basic functions of our courts are to interpret and apply the law, resolving disputes referred thereto. Section 165(5) of the Constitution of the Republic of South Africa provide that court orders are binding on all persons and organs of state to which it applies.
So often we have cases where court orders are not complied with, as a result not only does this jeopardise the proper function of the courts and the administration of justice, however it also deprives the other party of their benefit of the order and for this particular reason this impairs the effective administration of justice.
Fortunately, in instances where there is non-compliance of a court order, the person in whose favor the judgement was granted can approach the court seeking to have the contemnor be held in contempt of the said order. The purpose of a finding of contempt is to protect the foundation of justice by preventing unlawful disdain for judicial authority.
What is contempt of court?
There are two categories of contempt of court, civil and criminal contempt. In terms of criminal contempt, dishonour is brought upon the Court’s moral authority. In terms of civil contempt of Court, an action of disobedience of the court order. Therefore, the separation of the two forms of contempt lies in the action of the person in contempt and the consequence of such action it has on the Court. It is important to note that it is a crime to disobey a court order unlawfully and intentionally. The crime of contempt of court is said to be a blunt instrument therefore all contempt of court, even civil contempt, may be punishable as a crime.
Requirements for contempt of court
The applicant who seeks relief against a contemnor [respondent] must prove the following.
- the existence of a court order;
- service or notice of the court order;
- non-compliance with the terms of the order; and
- wilfulness and mala fides beyond reasonable doubt. But the respondent bears an evidentiary burden in relation to 4) above to adduce evidence to rebut the inference that his/her non-compliance was not wilful and mala fide.
Standard of proof in civil contempt proceedings
In Fakie case, the majority judges affirmed the availability of civil contempt, and that it passes constitutional muster in the form of a motion court application adapted to constitutional requirements. The Court stated that the respondent is not an accused person but is entitled to analogous protections as appropriate to motion proceedings. The majority judges held that the applicant in contempt proceedings must prove all the requisites of contempt beyond reasonable doubt. Furthermore, the Court 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.
Whereas in Pheko II the Court held 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.“[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.”
Summing up, both standards of proof ‘beyond reasonable doubt’ and ‘balance of probabilities’ are applicable in accordance with the purpose sought to be achieved, differently put, the consequences of the various remedies.
When dealing with Contempt of court, 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 constitutional 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” and the right “not to be detained without trial”. Equally so the limitation of rights section 36 of the Constitution may be applied to balance the rights of the alleged contemnor and that of the applicant to ensure the proper effective administration of justice.
In light of the above its clear that failure to comply with a court order amount to a criminal offence. Be that as it may, the court is directed by the relief sought, committal to imprisonment may be one of prayers sought. The relief sought by the applicant would determine which requisites to be proven, the standard of proof applicable, and the party who bear the onus.
A potential case for contempt of court can be seen looming in the matter between the State Capture Commission and former President Jacob Zuma. It would be interesting to observe whether the Commission will approach the court to seek an order that the former president be committed to imprisonment, if so, whether the Commission will succeed in proving that former President Jacob Zuma’s non-compliance with the terms of the order was wilful and mala fide beyond reasonable doubt. To escape committal to imprisonment whether former President Jacob Zuma will succeed to adduce evidence to rebut the inference that his non-compliance with the court order was not wilful and mala fide.
- The Constitution of the Republic of South Africa, 1996
- Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2)  ZACC 10
- Fakie v CCII Systems (Pty) Ltd  SCA 54 (RSA)
- Burchell v Burchell (ECJ 010/2006)  ZAECHC 35
- Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions (Pty) Limited  ZACC 35