The respondents, Chinese nationals with South African permanent residence, had three minor children who were refused entry into South Africa at OR Tambo International Airport by immigration officials on the basis that their permanent residence permits were allegedly fraudulent. In terms of s 34(8) of the Immigration Act 13 of 2002, Cathay Pacific was instructed to return the children to Hong Kong on the next available flight. An attorney for the parents urgently contacted Wright J telephonically, who issued an oral (telephonic) interdict prohibiting Cathay Pacific from boarding the two younger children. The order was not reduced to writing and was conveyed to a lost-property agent who failed to communicate that it was a court order to the relevant Cathay Pacific staff. The children nevertheless departed for Hong Kong. Wright J later issued further orders directing Cathay Pacific to return the children to South Africa, but these were sent to an incorrect email address and were not brought to Cathay Pacific’s attention. Subsequently, contempt proceedings were brought against Cathay Pacific and its employee, Ms Shirley Jones. Spilg J in the High Court found them in contempt. They appealed to the Supreme Court of Appeal.
The appeal was upheld with costs. The findings of contempt and the sentences imposed by the High Court were set aside and replaced with an order dismissing the contempt application. The counterapplication was dismissed with costs.
The case clarifies the strict requirements for civil contempt of court in South African law, particularly the necessity of proper service and proof of knowledge of a court order. It also affirms that, while courts may grant urgent telephonic orders, such orders must be clearly recorded and communicated. The judgment underscores that employees cannot be held personally liable for contempt where they were not cited or properly notified of an order.