Anna Mmakodi Thipe & Another v City of Tshwane Metropolitan Municipality & Others

The appellants were informal traders who operated from Denneboom Train Station, Mamelodi, Pretoria under lease agreements with the City of Tshwane. The second respondent, Isibonelo Property Services (Pty) Ltd, was constructing a shopping mall on the property. On 10 February 2017, Janse van Nieuwenhuizen J granted an order by agreement interdicting the respondents from demolishing the appellants' trading structures pending relocation and requiring provision of alternative facilities. On 22 September 2017, the appellants' trading facilities were demolished. The appellants alleged the City of Tshwane and Isibonelo authorized and participated in the demolition; respondents denied this and blamed community members and taxi drivers. Following the demolition, appellants brought a contempt of court application against the City of Tshwane and Isibonelo. The appellants subsequently sought to join the Municipal Manager, Mayor, and CEO of Isibonelo in both their official and personal capacities (third to eighth respondents) to hold them in contempt. On 8 November 2017, Mphahlele J referred certain issues to trial. No proper pleadings were filed despite proposals to do so. On 22 October 2018, Khumalo J upheld an exception raised on behalf of the third to eighth respondents and dismissed the application against them. The appellants appealed.

• Whether the high court erred in upholding the exception and dismissing the application for contempt rather than granting leave to amend the pleadings
• Whether the appellants' founding papers contained sufficient averments to sustain a contempt order against the third to eighth respondents in their personal capacities
• The proper procedural approach when an exception is upheld
• Whether officials can be held in contempt in their personal capacities for breach of court orders made against them in their official capacities

The appeal succeeded. The order of the high court upholding the exception and dismissing the claim against the third to eighth respondents was set aside. The costs occasioned by both the hearing of the exception in the high court and the appeal were ordered to be costs in the cause.

The upholding of an exception disposes of the pleading against which the exception was taken, not the action or defence. An unsuccessful pleader must ordinarily be given the opportunity to amend. Leave to amend is not a matter of indulgence but a matter of course unless there is a good reason that the pleading cannot be amended. Where no good reason exists for refusing leave to amend, a court errs in dismissing an application after upholding an exception without affording the applicant an opportunity to amend the defective pleading.

The Court made several non-binding observations: (1) The matter had been characterized by procedural missteps and piecemeal hearings due to the appellants' approach to litigation; (2) The primary factual disputes about who was responsible for the demolition should have been resolved first, as the legal questions about contempt depend upon the facts proven - if the original respondents are found not responsible for the demolition, the contempt application against them must fail, and it can hardly succeed against subsequently joined respondents; (3) Given the passage of time, completion of construction, change in political leadership, and potential unavailability of witnesses, any contempt order against the third, fourth, sixth and seventh respondents would likely be largely symbolic; (4) The Court noted that the high court would have been justified in declining to decide the matter on exception given the procedural course the matter had followed.

This case establishes important principles regarding the proper procedural approach when exceptions are upheld in South African civil procedure. It confirms that upholding an exception disposes of the defective pleading, not the entire action, and that leave to amend should ordinarily be granted unless there is good reason to refuse it. The case also illustrates the practical difficulties and procedural complexities that can arise in contempt of court proceedings against public officials, particularly when there are disputes about joinder, capacity (official versus personal), and factual causation. It serves as a cautionary example of how procedural missteps and failure to comply with court rules can result in protracted, costly litigation with piecemeal hearings.