IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 337/17
In the matter between:

NETSHAMUTSHEDZI, LINDELANI VIRGINIA obo

AREHONE CHARLIE NEPFUMBADA Plaintiff

and

MEC FOR THE DEPARTMENT OF HEALTH,

LIMPOPO PROVINCIAL GOVERNMENT Defendant

OPINION

TO: STATE ATTORNEY, THOHOYANDOU

FOR ATTENTION: Mr V R Mbambale
REF: 133/17/T
FROM: ADV T F MATHIBEDI SC
DATE: 8 DECEMBER 2018
IN RE: L V NETSHAMUTSHEDZI obo A C NETSHAMUTSHEDZI v

MEC FOR THE DEPARTMENT OF HEALTH, LIMPOPO

PROVINCIAL GOVERNMENT
 Page 2

INTRODUCTION

1. Consultant is the MEC for the Department of Health, Limpopo Provincial

Government (“the MEC”).

2. The Plaintiff institute a civil suit against the MEC on behalf of her minor

daughter for damages in the amount of R55 000 000.00. It is alleged that the

damages arose from either negligent conduct and/or breach of duty of care

on the part of medical staff in the employment of the Department of Health,

Limpopo (“the Department’) who were based at Donald Fraser Hospital,

Limpopo.

3. The basis for the civil suit is more fully set out in the summons. The Plaintiff,

on the 22nd March 2018, obtained a Court Order, and for the purpose of this

opinion, the relevant prayers read as follows:

“4. That the Respondent/Defendant should file her experts’ reports

in terms of Rule 36(9)(a), (b) of Uniform Rules of Court within ten

days of service of Court Order.”

“6. That costs of this application on a punitive scale cost order.”

 Page 3

4. There was non-compliance with the prayers set out above, which resulted in

the launching of an application by the Plaintiff (“the contempt application”).

The relief sought in the contempt application, reads as follows:

“1.1 Committal for civil contempt of Court.

1.2 Pay costs of this application on attorney and client scale.”

5. The contempt application was served on the State Attorney on the 27 th of

August 2018. Of critical importance is an indication that in the event that

there was no opposition to the application, then the matter was to be heard

on Thursday, the 6th of September 2018. As at the 30 th of November 2018

the contempt application was not heard.

6. The basis for the contempt application is stated as follows:

“16. The respondent was part of the proceedings and paragraph 4 of

the court order had been granted her.

17. I am advised and submit that respondent has full knowledge of

the court order had been granted her.

18. I am advised and submit that the respondents failed and refused

to execute paragraph 4 of the court order granted on the 22 nd

March 2018.
 Page 4

19. I am advised and submit that the paragraph 4 of the original

court order granted on the 22nd March 2018 which form the basis

of this application have not as yet aside and as such it must be

obeyed.

20. I am advised and submit that the respondent’s disobedience of

the said court order is both wilful and mala fide or negligent.

21. I am advised and submit that the order was granted against the

respondent.

22. I am advised and submit that the court order was served on the

respondent.

23. I am advised and submit that the respondent has disobeyed the

order or neglected to comply with it.”

7. The civil suit was set down for a judicial pre-trial conference and for a

determination as to whether the matter was ripe for hearing on the 30 th of

November 2018.

8. The legal representatives of the parties agreed that the Department shall file

its experts’ reports by the 17th of April 2019. It was further agreed that the
 Page 5

joint minutes of the experts shall be filed on the same day. The aforesaid

agreement was made a Court Order.

9. Based on the Court Order referred to above, I have prepared an opposing

affidavit wherein it is indicated that the Plaintiff waived her right to proceed

with the contempt application, that the contempt application is moot and

compromised. The only issue that is alive between the parties is the issue of

costs for the launching of the contempt application.

10. I have been briefed to give an opinion, justifying my view that the contempt

application is moot, compromised on the basis that the Plaintiff waived her

right to proceed with the contempt application. It is correct that, as at the time

that the Court Order was made on the 30th of November 2018, the MEC was

in contempt of a Court Order.

11. In order to justify the view expressed above, it is imperative that I should

address the principle of Contempt of Court, mootness, waiver and

compromise, which I deal with below.

CONTEMPT OF COURT

12. The primary purpose of a contempt application is to ensure that there is

compliance with a Court Order. A Court Order is binding on the person

 Page 6

against whom it was obtained until such a time that either the Court Order is

set aside or there is compliance therewith.

13. The test and definition of contempt of a Court Order is espoused in the

judgment of Fakie NO v CCII Systems (Pty) Ltd1 as follows:

“[6] It is a crime unlawfully and intentionally to disobey a court order.

This type of contempt of court is part of a broader offence, which

can take many forms, but the essence of which lies in violating

the dignity, repute or authority of the court. The offence has, in

general terms, received a constitutional ‘stamp of approval’,

since the rule of law – a founding value of the Constitution –

‘requires that the dignity and authority of the courts, as well as

their capacity to carry out their functions, should always be

maintained’.”

14. In the matter of Fakie (supra)2 the Court held:

“[9] 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

1
2006 (4) SA 326 (SCA) at 332
State v Beyers 1968 (3) SA 70 (A)
Matiso v Commanding Officer; Port Elizabeth Prison 1995 (4) SA 631 (CC) [61]
2
Fakie (supra) at 333
 Page 7

mistakenly, believe him or herself entitled to act in the way

claimed to constitute the contempt. In such a case, good faith

avoids the infraction. Even a refusal to comply that is objectively

unreasonable may be bona fide (though unreasonableness could

evidence lack of good faith).

[10] 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 order, but by the

deliberate and intentional violation of the court’s dignity, repute or

authority that this evinces. Honest belief that non-compliance is

justified or proper is incompatible with that intent.”

15. South Africa is a Constitutional State and no-one is above the law, in

particular, government officials are expected to observe and obey the

Constitution of South Africa, Act 108 of 1996 (“the Constitution”) and Court

Orders directing them to execute specific actions or obligations. In this

regard, reliance is placed on the cases cited below.

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16. In the matter of Bezuidenhout v Patensie Sitrus Beherend BPK 3 the Court

held as follows:

“An order of a court of law stands until set aside by a court of competent

jurisdiction. Until that is done the court order must be obeyed even if it

may be wrong (Culverwell v Beira 1992 (4) SA 490 (W) at 494A-C). A

person may even be barred from approaching the court until he or she

has obeyed an order of court that has not been properly set aside

(Hadkinson v Hadkinson [1952] 2 ER 567 (CA); Bylieveldt v Redpath

1982 (1) SA 702 (A) at 714). In Kotze v Kotze 1953 (2) SA 184 (C)

Herbstein J provided the rationale at 187F”

“The matter is one of public policy which requires that there shall be

obedience to orders of Court and that people should not be allowed to

take the law into their own hands.”

17. In the matter of Kotze v Kotze4 the Court held:

“The matter is one of public policy which requires that there shall be

obedience to orders of Court and that people should not be allowed to

take the law into their own hands.”

3
2001 (2) SA 224 at page 229 para B-D
4
1953 (2) SA 184 (C) at page 187 para E-F
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18. In the matter of Di Bona v Di Bona and Another5 the Court held:

“The general rule is that orders of Court must be obeyed. Were this not

so the protection of the rights of persons and the resolution of disputes

by recourse to the Court, which is established for that purpose, would

be deprived of the proper administration of justice. Contempt of an order

of Court is therefore a grave matter. It is no less grave where it relates

to disobedience of an order for the custody of or access to children.”

19. In the matter of Fedsure Life Assurance v Greater Johannesburg TMC 6

the Court held:

“Simply put, the constitutionalism principle requires that all government

action comply with the Constitution. The rule of law principle requires

that all government action must comply with the law, including the

Constitution. This Court has noted on several occasions that with the

adoption of the Charter, the Canadian system of government was

transformed to a significant extent from a system of Parliamentary

supremacy to one of constitutional supremacy. The Constitution binds

all governments, both federal and provincial, including the executive

branch (Operation Dismantle Inc v The Queen [1985] 1 SCR 441 at

445). They may not transgress its provisions: indeed, their sole claim

5
1993 (2) SA 682 (CPD) at page 689 para C-G
6
1999 (1) SA 374
 Page 10

to exercise lawful authority rests in the powers allocated to them under

the Constitution, and can come from no other source.”

20. Courts view defiance and non-compliance with its orders in a very serious

light, which conduct is seriously discouraged.

“The consequences of the rule are that anyone who disobeys an order

of Court is in contempt of Court and may be punished by arrest of his

person and by committal to prison and, secondly, that no application to

the Court by a person in contempt will be entertained until he or she has

purged the contempt.” 7

21. In the matter of SA Litigation Centre v Minister of Justice and

Constitutional Development8 the Court held:

“[37.1] The respondents are quite aware of the provisions of ss 1 and 2

of the Constitution which declare that the state is founded on the

supremacy of the Constitution and the rule of law. They are also

aware of the constitutional enjoinder that international

agreements bind the Republic, especially those that have been

ratified (s 231). They are obviously bound to comply with

domestic legislation and obviously the Implementation Act. They

7
Di Bona v Di Bona and Another 1993 (2) SA 682 (CPD) at page 688 F – G
8
2016 (1) SACR 161
 Page 11

must also be aware of s 165 of the Constitution, which reads as

follows:

‘165 Judicial authority

(1) The judicial authority of the Republic is

vested in the courts.

(2) The courts are independent and subject only

to the Constitution and the law, which they

must apply impartially and without fear,

favour or prejudice.

(3) No person or organ of state may interfere

with the functioning of the courts.

(4) Organs of state, through legislative and other

measures, must assist and protect the courts

to ensure the independence, impartiality,

dignity, accessibility and effectiveness of the

courts.

(5) An order or decision issued by a court binds

all persons to whom and organs of state to

which it applies.’
 Page 12

[37.2] At this stage, on a common-sense approach, there are clear

indications that the order of Sunday 14 June 2015 was not

complied with. It is for this reason that we are moved to state

that a democratic state based on the rule of law cannot exist or

function, if the government ignores its constitutional obligations

and fails to abide by court orders. A court is the guardian of

justice, the cornerstone of a democratic system based on the rule

of law. If the state, an organ of state or state official does not

abide by court orders, the democratic edifice will crumble stone

by stone until it collapses and chaos ensues.

[38] In the context of s 165 of the Constitution of South Africa, the

Constitutional Court has also confirmed that principles of the rule

of law are indispensable cornerstones of our constitutional

democracy. See Justice Alliance of South Africa v President of

the Republic of South Africa and Others 2011 (5) SA 388 (CC)

(2011 (10) BCLR 1017; [2011] ZACC 23) para 40. The

emphasis must be on ‘indispensable’. Where the rule of law is

undermined by government it is often done gradually and

surreptitiously. Where this occurs in court proceedings, the court

must fearlessly address this through its judgments, and not

hesitate to keep the executive within the law, failing which it

would not have complied with its constitutional obligations to

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administer justice to all persons alike without fear, favour or

prejudice.

[39] We stated earlier that the departure of President Bashir from this

country before the finalisation of this application and in the full

awareness of the explicit order of Sunday 14 June 2015,

objectively viewed, demonstrates non-compliance with that order.

For this reason we also find it prudent to invite the NDPP to

consider whether criminal proceedings are appropriate.”

22. In the matter of Member of the Executive Council for Health, Eastern

Cape and another v Kirland Investment (Pty) Ltd t/a Eye and Laser

Institute9 the Court held:

“[43] The MEC’s conduct illustrates a complete disregard for the

relevant legal prescripts and the abuse of public authority to

facilitate a desired outcome. The conduct is incompatible with

the principles and values enshrined in the Constitution.20

Furthermore, the Constitution imposes an obligation on officials

to act reasonably and lawfully when exercising public power.21

What occurred here was neither reasonable nor lawful. A

decision flowing from such conduct must not be allowed to

remain in existence on the technical basis that there was no

9
Case CCT 77/13, page 19 - 20
 Page 14

application to have it reviewed and set aside. The

uncontroverted evidence on record establishes that the decision

to approve the applications was a contravention of the law and

the Constitution. Therefore it ought to have been declared invalid

and set aside.

20
Section 195(1) of the Constitution provides:
“Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:

(a) A high standard of professional ethics must be promoted and

maintained.

(b) Efficient, economic and effective use of resources must be promoted.

(c) Public administration must be development-oriented.

(d) Services must be provided impartially, fairly, equitably and without

bias.

(e) People’s needs must be responded to, and the public must be

encouraged to participate in policy-making.

(f) Public administration must be accountable.

(g) Transparency must be fostered by providing the public with timely,

accessible and accurate information.

(h) Good human-resource management and career-development

practices, to maximise human potential, must be cultivated.

(i) Public administration must be broadly representative of the South

African people, with employment and personnel management

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practices based on ability, objectivity, fairness, and the need to

redress the imbalances of the past to achieve broad representation.””

21
Section 33 of the Constitution guarantees the right to administrative action that
is lawful and reasonable. This means that when an official makes a decision,
he or she must adhere to these requirements.”

23. In the matter of Nthabiseng Pheko and another v Ekurhuleni Metropolitan

Municipality and another10 the Court held:

“Contempt of court orders

[25] Before I deal with these issues, it is important to outline the

current status of our law regarding contempt of court orders with

reference to the decision of the Supreme Court of Appeal in

Fakie.17 I do so while keeping in mind the difficulties inherent in

compelling compliance from recalcitrant state parties in a manner

that displays the courts’ discontent with disregard for the rule of

law.

17
Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA

326 (SCA) (Fakie)

[26] The starting point is the Constitution. It declares its own

supremacy and this supremacy pervades all law. 18 Section 165

vouchsafes judicial authority. It provides that courts are vested

with judicial authority and that no person or organ of state may

10
Case CCT 19/11
 Page 16

interfere with the functioning of the courts. 19 The Constitution

explicitly enjoins organs of state to assist and protect the courts

to ensure their independence, impartiality, dignity, accessibility

and effectiveness.20 In order to ensure that the courts’ authority

is effective, section 165(5) makes an order of court binding on “all

persons to whom and organs of state to which it applies”. These

obligations must be fulfilled. It is significant that this subsection

specifically mentions organs of state, for “justiciability and powers

of constitutional review make sense only if non-judicial authorities

cannot and do not undo court orders and/or their

consequences”.21 These sections, read alongside the interpretive

injunction of the supremacy clause, demonstrate why continual

non-compliance with the court orders and decisions would,

inevitably, lead to a situation of constitutional crisis.

18
Section 1(c) of the Constitution provides:
“The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
…

(c) Supremacy of the Constitution and the rule of law.”

19
Section 165(1) and (3).
20
Section 165(4). Under section 239 of the Constitution, “organ of state”
is defined to mean—

“(a) any department of state or administration in the national,

provincial or local sphere of government; or

(b) any other functionary or institution—

 Page 17

(i) exercising a power or performing a function in terms of

the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public

function in terms of any legislation, but does not
include a court or a judicial officer.”
21
Du Plessis “Interpretation” in Woolman et al (eds) Constitutional Law of
South Africa Service 6 (2014) 2 at 32-99.

[27] Notwithstanding this clear constitutional imperative that the

authority of our courts is to be respected and upheld, certain

state parties have, on occasion, displayed a troubling disregard

for judicial orders. It is not difficult to reference examples of

cases involving contempt, by state organs, of court orders where,

most troublingly, constitutional rights are in issue. 22 The cases

are by no means exhaustive of state parties’ non-compliance with

the orders and decisions of our courts; they are included merely

to illustrate the extent and nature of this phenomenon. What they

show is not merely that state parties are failing, in a very serious

way, to meet their constitutional obligations, but that these

failures have real and serious consequences for those whose

interests they are there to serve.23

22
See, for example, Nyathi v MEC for the Department of Health,

Gauteng and Another [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008 (9)

BCLR 865 (CC) (Nyathi); N and Others v Government of South Africa

(No 3) 2006 (6) SA 575 (D) (N and Others); City of Cape Town v

Rudolph and Others 2004 (5) SA 39 (C); and Federation of Governing

 Page 18

Bodies of South African Schools (Gauteng) v MEC for Education,

Gauteng 2002 (1) SA 660 (T) (Federation of Governing Bodies).

23
The extent of state parties’ non-compliance and the harm that it can

cause not only to the authority of the courts but to the public is

illustrated the following cases:

In Nyathi id, the applicant had obtained an unopposed High Court

judgment against the state respondent for negligent and improper care

administered to him at two hospitals. That care had resulted in a

stroke and severe left hemiplegia, thereafter requiring full time care

and medical treatment. The respondent admitted liability, leaving only

the issue of quantum to be addressed. Unable to obtain an interim

payment from the respondent to cover his medical and legal fees, the

applicant obtained an unopposed order from the High Court obliging

the respondent to make an interim payment. The respondent failed to

comply with that order, however, requiring the applicant to launch

proceedings in the High Court challenging the constitutionality of a

provision of the State Liability Act, 20 of 1957, which prevented

execution against state property. The respondent did not respond to

the notice of motion. It was only when the matter was set down in this

Court for contempt proceedings that the respondent made the

payment, nearly two years after the unopposed action had been

commenced. The applicant died two months after the payment was

made.

Federation of Governing Bodies id, concerned the rights ancillary to

the proper running of the school system and provision of quality

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education. Having obtained a consent order, which in effect required

that the respondent comply with the relevant statutory prescripts, the

applicant brought contempt proceedings contending that steps were

being taken to close pre-primary schools without engaging the affected

parties. The High Court found for the applicants, holding that the

respondent had failed to comply with its obligations under the consent

order.

Similarly, in N and Others id, the applicants, who were prisoners of

Westville Correctional Centre whose HIV status had deteriorated to

and below a CD4 count of 200 cells/ml, had successfully sought an

order compelling the state correctional facility to provide them with

immediate antiretroviral (ARV) treatment. That order included the

requirement that the respondents lodge with the court Registrar an

affidavit setting out the manner in which it would comply. The

respondents failed to file such a report. The reprehensibility of the

state parties’ conduct in relation to this matter, which on the evidence

included denying public interest groups the ability to enter the prison to

consult with the prisoners regarding their medical well-being, is

brought home by the fact that one of the prisoners lost his life shortly

after the initial court order was granted.

[28] 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.24 This includes acts of

contumacy in both senses: wilful disobedience and resistance to

lawful court orders.25 This case deals with the latter, a failure or
 Page 20

refusal to comply with an order of court. Wilful disobedience of

an order made in civil proceedings is both contemptuous and a

criminal offence.26 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.27

24
Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others 1956

(1) SA 105 (N) (Cape Times) at 106A-B.

25
Further, any interference with the administration of justice would

constitute a basis for a finding of contempt of court. Id at 106A.

26
Fakie above n 17 at para 6. Prior to the pronouncement of S v Beyers

1968 (3) SA 70 (A) there was uncertainty about the ability of a civil

order to attract public prosecution. That case provided that even where

a litigant seeking a coercive civil contempt order abandons their cause

of action that does not, depending on the nature and seriousness of

the contempt, preclude the court from enforcing a criminal sanction

such as committal, (see Fakie above n 17 at para 11).

27
Cilliers et al Herbstein and Van Winsen The Civil Practice of the High

Courts and the Supreme Court of Appeal of South Africa 5 ed (Juta,

Cape Town 2009) volume 2 at 1100.

[29] The courts’ treatment of contempt has been developed over the

years. Under the common law, there are different classifications

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of contempt: civil and criminal, in facie curiae (before a court) or

ex facie curiae (outside of a court).29 The forms of contempt that

concern us here, namely those occurring outside of a court, could

be brought before court in proceedings initiated by parties, public

prosecutors or the court acting of its own accord (mero motu).30

28
Cape Times above n 24 at 106C-D; Fakie above n 17 at para 11.
29
Id at 110C. Comparable foreign jurisprudence is helpful in this regard:

In the United States, “it is long settled that courts possess inherent
authority to initiate contempt proceedings for disobedience to their
orders”. See Young v United States ex rel Vuitton et Fils SA 481 US
787 (1987) at 793. By comparison, in Canada, courts may institute
contempt proceedings ex mero motu—

“[b]ut it is a drastic procedure which should be used cautiously

only to uphold the authority of the Court and its process, or to
enable justice to be properly administered, or to maintain the
authority of the law. It ought not to be used merely to uphold
and vindicate the processes of the law for the benefit of one of
the litigants.” (R v UFAW [1967] 65 D.L.R. (2d) 579 (BCCA) at
591.)

And in the United Kingdom, civil contempt is understood to vindicate

the public’s interest in the enforceability of court orders. See Lowe and
Sufrin, The Law of Contempt 3 ed (Butterworths, London 1996) at 559.
Therefore when contempt takes on a public dimension, “particularly if
the offender is deliberately pursuing a policy of challenging a court’s
authority”, British courts are empowered to initiate contempt
proceedings mero motu (id at 559, 659). See also Churchman v Joint
Shop Stewards’ Committee of the Workers of the Port of London and
others [1972] 3 All ER 603 (CA) at 608.

[30] 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. 30

Civil contempt is a crime,31 and if all of the elements of criminal

contempt are satisfied, civil contempt can be prosecuted in

criminal proceedings, which characteristically lead to committal.

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Committal for civil contempt can, however, also be ordered in civil

proceedings for punitive or coercive reasons. 32 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. However, under the discretion of the

presiding officer, when contempt occurs a court may initiate

contempt proceedings mero motu.

30
See Burchell Principles of Criminal Law (Juta & Co Ltd, 3rd ed) at 955.
31
Above n 26.
32
Fakie above n 17 at para 71.

[31] Coercive contempt orders call for compliance with the original

order that has been breached as well as the terms of the

subsequent contempt order. A contemnor may avoid the

imposition of a sentence by complying with a coercive order.33 By

contrast, punitive orders aim to punish the contemnor by

imposing a sentence which is unavoidable.34 At its origin the

crime being denounced is the crime of disrespecting the court,

and ultimately the rule of law.35

33
Id at para 74. There are divergent views between the majority and the
minority as to the distinction to be drawn between these two
classifications. However, the characterisation presented by Heher JA,
of the minority, appears to accurately capture the common law position
in this regard.
34
Id at para 75.
 Page 23

35
York Timbers Ltd v Minister of Water Affairs & Forestry and Another
2003 (4) SA 477 (T) (York Timbers) at 506D and Mjeni v Minister of
Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk) at 456A-B. As
explained id. See also section 1(c) of the Constitution.”

24. As at the 30th of November 2018, an Order had not been obtained in terms of

which the MEC had been found guilty of contempt of Court, either to be fined

or be committed to imprisonment. The obtainment of the judgment on the

30th of November 2018 superseded the earlier judgment in terms of which the

MEC was directed to file her experts’ reports in terms of Rule 36(9)(a) and (b)

within ten days of the judgment.

MOOTNESS

25. The judgment of the 30th of November 2018 rendered the contempt

application moot in that there is no live issue between the parties, relating to

the earlier non-compliance with the Court Order. The only issue that is alive

between the parties relates the costs of the contempt application. The issue

can easily be resolved by requesting the withdrawal of the contempt

application and the tendering of the Applicant’s costs relating to the settling

and launching of the contempt application.

26. It is trite law that it is not the function of the Court to determine matters that

are moot. The function of the Court is to adjudicate matters which are alive
 Page 24

with the result that such orders are enforceable. In support of the view

expressed above, reference is made to the cases cited below.

27. In the matter of Legal-Aid South Africa v Magidiwana & Others 11 the Court

held:

“The court has a discretion in that regard and there are a number of

cases where, notwithstanding the mootness of the issue as between

the parties to the litigation, it has dealt with the merits of an appeal. 12

With those cases must be contrasted a number where the court has

refused to deal with the merits.13 The broad distinction between the

two classes is that in the former and on which the adjudication of this

court was required, whilst in the latter no such issue arose.”

“It is trite that every case has to be decided on its own facts. And

efforts to compare or equate the facts of one case to those of another

are unlikely to be of assistance. For, as we will know, parties

frequently endeavour to distinguish their case on the fact from those

reported decisions adverse to them.”

11
2015 (2) SA 568 (SCA)
12
In addition to Natl Rugby Union v Gould; The Marak S: See Melody Enterprises SA; and Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie see for example Executive Officer,
Financial Services Board v Dynamic Wealth Ltd 2012 (1) SA 453 (SCA).
13
See for example: Radio Pretoria v Chairman, Independent Communications Authority of South
Africa above; Rand Water Board v Rotek Industries (Pty) Ltd above; Minister of Trade and
Industry v Klein NO [2009] 4 All SA 328 (SCA); Clear Enterprises (Pty) Ltd v Commissioner,
SARS (757/10) [2011] ZASCA 164 (29 September 2011); The Kenmont School v DM (454/12)
[2013] ZASCA 79 (30 May 2013) and Ethekwini Municipality v SAMWU (442/11) [2013]
ZASCA 135 (27 September 2013)
 Page 25

28. In the matter of Independent Electoral Commission v Langeberg

Municipality14 the Court held:

“[9] In National Coalition for Gay and Lesbian Equility and

Others v Minister of Home Affairs and Others 15

Ackermann J said:

‘A case is moot and therefore not justiciable if it no

longer presents an existing and live controversy

which should exist if the Court is to avoid giving

advisory opinions on abstract propositions of law.’”

29. In the unreported judgement of Minister of Justice and Constitutional

Development and Others v The South Africa Litigation Centre 16 the Court

held:

“In Janse van Rensburg NO & Another v Minister of Trade and

Industry and another NNO17 the Constitutional Court stated:

‘This Court has held that an issue is moot if it does not present

an existing or live controversy; such an issue is not justiciable.’”

14
2001 (3) SA 925 (CC) at 931 [9]
15
2000 (2) SA 1 (CC) (2000 (1) BCLR 39)
16
(27740/2015) [2015] ZAGPPHC 675 (16 September 2015)
17
2001 (a) SA 29 (CC) par 9
 Page 26

30. In the matter of Van Wyk v UNITAS Hospital and another (Open

Democratic Advice Centre as Amicus Curiae)18 the Court held

“[29] It is by now axiomatic that mootness does not constitute

an absolute bar to the justiciability of an issue. The Court

has a discretion whether or not to hear a matter. The test

is one of the interests of justice. A relevant consideration

is whether the order that the Court may make will have

any practical effect either on the parties or on others. In

the exercise of its discretion the Court may decide to

resolve an issue that is moot if to do so will be in the

public interest. This will be the case where it will either

benefit the larger public or achieve legal certainty.

[30] If the only hurdle that the applicant had to surmount was

mootness, the position would have been entirely different.

Here the applicant has to surmount two hurdles, the first

being the inordinate delay coupled with a lack of a

reasonable explanation for the delay. Mootness adds a

further hurdle and renders the first hurdle insurmountable.

Mootness is but one of the factors that must be taken into

18
2009 (2) SA 472 (CC) [29] – [30]
 Page 27

consideration in the overall balancing process to

determine where the interests of justice lie. It assumes a

particular significance in this case where there was an

inordinate delay of some eleven months and the absence

of a reasonable explanation. In the circumstances of this

case it would be unfair to the hospital to compel it to incur

more costs simply to resolve an issue in the public

interest.”

31. Applying the principle refer to in the various cases cited above, to the

objective facts of this matter, it has been demonstrated that the contempt

application is moot.

WAIVER

32. In certain instances, a litigant may expressly or by conduct waive a right that

he has. The Court will not likely accept that a litigant waived his right.

33. The onus to establish waiver is on the person so alleging. In substantiation of

my view, reliance is placed on the cases set out below.

34. In the matter of Road Accident Fund v Mothupi19 the Court held:

19
2000 (4) SA 38 (SCA) at 49F – 50G
SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA 42 (A) 49G-H
Palmer v Poulter 1983 (4) SA 11 (T) 20C-21A
Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995 (1) SA 23 (C) 26H-27G
 Page 28

“[15] INFERRED WAIVER:

Waiver is first and foremost a matter of intention. Whether it is

the waiver of a right or a remedy, a privilege or power, an interest

or benefit, and whether in unilateral or bilateral form, the starting

point invariably is the will of the party said to have waived it. The

right in question in the instant case is the statutory provision

specifically accorded to the Fund to avert claims which are out of

time.

“It is a well-established principle of our law that a statutory

provision enacted for the special benefit of any individual

or body may be waived by that individual or body,

provided that no public interests are involved. It makes no

difference that the provision is couched in peremptory

terms.”

[16] The test to determine intention to waive has been said to be

objective. That means, first, that intention to waive, like intention

generally, is adjudged by its outward manifestations; secondly,

Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C)
543A-544D
Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) 634H-635D
Botha (now Griessel) and Another v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) 792B-E
Mutual Life Insurance Co of New York v Ingle 1910 TS 540, 550
Mahabeer v Sharma NO and Another 1985 (3) SA 729 (A) 737D-E
Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) 778D-9A
Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) 704F-H
 Page 29

that mental reservations, not communicated, are of no legal

consequence; and thirdly, that the outward manifestations of

intention are adjudged from the perspective of the other party

concerned, that is to say, from the perspective of the latter’s

notional alter ego, the reasonable person standing in his shoes.

[18] The outward manifestations can consist of words; of some other

form of conduct from which the intention to waive is inferred; or

even of inaction or silence where a duty to act or speak exists. A

complication may arise where a person’s outward manifestations

of intention are intrinsically contradictory, as for instance where

one telefax indicates an intention to waive and another, perhaps

as a result of a typographical error, does not. That problem does

not arise in this case and consequently need not be discussed.

Nor is it necessary to consider some of the other problems

relating to waiver which do not arise in this case, such as

whether the manifestation of an intention to waive must of

necessity be communicated to the other side, and, if so, whether

by some means or another it must always be “accepted” or acted

upon by the other party.

[19] Because no one is presumed to waive his rights, one, the onus is

on the party alleging it and, two, clear proof is required of an

 Page 30

intention to do so. The conduct from which waiver is inferred, so

it has frequently been stated, must be unequivocal, that is to say,

consistent with no other hypothesis.”

35. In the matter of Bortslap v Spangenberg en Andere20 the Court held:

“Dit is herhaaldelik deur ons Howe beklwmtoon dat duidelike bewys van

‘n beweerde afstanddoening van regte geverg word, veral waar op ‘n

stilswyende afstandoening staat gemaak word. Dit moet duidelik blyk

dat die betrokke person opgetree het met behoorlike kennis van sy

regte end at sy optrede teenstrydig is met die voortbestaan van

sodanige regte of met die bedoeling om hulle af te dwing. Soos

Hoofregter Innes die vereistes in Laws v Rutherford, 1924 ad 261 op bl

263, gestel het –

‘The onus is strictly on the appellant. He must show that the

respondent, with full knowledge of her right, decided to abandon

it, whether expressly or by conduct plainly inconsistent with an

intention to enforce it. Waiver is a question of fact, depending on

the circumstances. It is always difficult, and in this case specially

difficult to establish.”

20
1974 (3) SA 695 (A) at 704G
 Page 31

36. The agreement concluded by the parties’ legal representatives amounts to a

clear and unequivocal waiver not to proceed with the contempt application.

There is nothing that causes the Department’s legal team to question or

doubt the authority of the Plaintiff’s legal representative relating to the

conclusion of the agreement.

COMPROMISE

37. The Plaintiff’s legal representatives, by concluding an agreement which was

made a Court Order on the 30th of November 2018, compromised the initial

order that was granted against the MEC which was her committal for

contempt of Court. In this regard, reliance is placed on the cases cited below.

38. In the matter of Burt NO v National Bank of South Africa Ltd 21 the Court

held:

“So that it is doubly clear that if the tender was duly accepted, any right

to the balance was gone; which brings us to the enquiry whether it was

so accepted. That is a matter which must always depend upon the

declaration and conduct of the alleged acceptor, viewed in the light of

relevant circumstances. Every case must be decided on its own facts;

the object being in each case to ascertain whether the parties were ad

idem.”

21
1921 AD 59 at 62
 Page 32

39. In the matter of Karson v Minister of Public Works22 the Court held:

“It is well settled that the agreement of compromise, also known as

transactio, is an agreement between the parties to an obligation, the

terms which is uncertain, settling the matter in dispute, or between the

parties to a lawsuit, the issue of which is uncertain, settling the matter in

dispute, each party receding from his previous position and conceding

something, either by diminishing his claim or by increasing his liability.

It is thus the very essence of a compromise that the parties thereto, by

mutual assent, agree to the settlement of previously disputed or

uncertain obligations.”

CONCLUSION

40. The Order obtained on the 30th of November 2018 is valid and binding upon

the parties until set aside.

41. Applying the principles set out in the various cases referred to above to the

objective facts of this matter, it is my considered opinion that the contempt

application is moot. The conclusion of the agreement which culminated in the

Court Order of the 30th of November 2018 compromised the earlier Court

Order and the contempt application, with the result that the Plaintiff waived

her rights.

22
1996 (1) SA 887 (E) at 893 F – H
 Page 33

42. The officials of the Department are urged to give Mr Mbambale instructions to

write a letter to the Plaintiff’s attorney, requesting him to withdraw the

contempt application and making a tender of the necessary costs occasioned

by the launching of the contempt application and the perusal of the opposing

affidavit.

43. It should also be indicated that in the event that the proposal is not

acceptable to the Plaintiff, and the matter being pursued, a punitive costs

order will be sought against the Plaintiff.

44. The instructing attorney and/or officials of client are at liberty to dscuss with

me any issue that may arise from this opinion.

T F MATHIBEDI SC
Chambers
Sandton
8 December 2018