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Twizza (Proprietary) Limited and Others v Enoch Mgijima Local Municipality and Others; In re Border - Kei Chamber of Business and Others v Eskom Holdings SOC Limited and Others (3413/2018) [2021] ZAECGHC 20

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Twizza (Proprietary) Limited and Others v Enoch Mgijima Local Municipality and Others; In re Border - Kei Chamber of Business and Others v Eskom Holdings SOC Limited and Others (3413/2018) [2021] ZAECGHC 20

Twizza (Proprietary) Limited and Others v Enoch Mgijima Local Municipality and Others; In re Border - Kei Chamber of Business and Others v Eskom Holdings SOC Limited and Others (3413/2018) [2021] ZAECGHC 20

26th February 2021

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[1]      This is an application for leave to appeal against my judgment and order delivered on the 8 December 2020. The order I issued was inter alia to the effect that second and third respondents in the matter, now applicants were in contempt of court for failing to comply with an order that was issued by Mfenyana AJ on the 12 December 2019.

 [2]     The applicants in the main application oppose the application on the basis that the appeal does enjoy reasonable prospects of success.    

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[3]      One of the grounds of appeal listed in the notice of application for leave to appeal and expanded on by Mr Rorke SC for the applicants in argument is the following:

That I erred in holding that the respondents’ non-compliance with the order of 12 December 2019 was, beyond a reasonable doubt, mala fides.

The question relating to the requirements of contempt of court was considered by the Constitutional Court in a matter I was referred to by Ms Rorke SC which dealt with two matters, one of which also incidentally involved an allegation of contempt of court by officials of municipality following deed of settlement entered into between the parties. Which settlement was made an order of the court. The matter of Matjhabeng v Municipality Eskom.[1] The subject of the contempt of court complaint, is also similar to this matter in that it concerned the non-payment of a municipal bill to Eskom in one of the matters under consideration by the Constitutional Court.

[4]      I still stand by the reasons I gave for coming to the conclusion that that non-compliance with the court order in question was beyond a reasonable doubt, wilful and mala fide. However, after a reading of the Matjhabeng Municipality judgment in particular paragraphs [86] – [88] I am unable to say that there are no reasonable prospects that the appellate court might find that the explanation(s) proffered by the respondents create doubt regarding the requirement of wilfulness and mala fides on their part. Although leave to appeal was sought to the Supreme Court of Appeal on the basis that the matter is of importance, I am not persuaded that this is a matter that calls for the attention of the Supreme Court of Appeal.  

[5]     Accordingly, leave to appeal is granted to the full bench of this division. Costs to be costs in the appeal.

 

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