Cornelius Johannes Alexander Lourens v Premier of the Free State Province & another

In 2013, the appellant obtained a court order by agreement requiring the Premier of the Free State Province to give effect to section 6(4) of the Constitution (regulation of official languages) by putting in place legislative and other measures by 31 March 2014. The Premier immediately acted by directing the MEC to prepare a language policy and language bill. The executive council approved the Free State Provincial Government Language Policy on 26 March 2014 and the Use of Free State Official Languages Bill, 2014 was published and tabled before the Legislature on 28 March 2014. The Language Bill lapsed due to the 2014 general elections but was later republished, resubmitted and eventually passed by the Legislature as the Use of Free State Official Languages Act, 2017 on 28 March 2017. The appellant launched a contempt application in June 2015 alleging that the Premier had deliberately failed to comply with the order. The High Court dismissed the contempt application, finding no proof of wilful and mala fide non-compliance.

• Whether the Premier failed to comply with the court order of 7 November 2013
• Whether the Premier had authority to control the legislative process beyond tabling a bill before the Legislature
• Whether any non-compliance by the Premier was wilful and mala fide to constitute contempt of court
• Whether the appeal should be dismissed on grounds of mootness under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013
• Whether costs should be awarded against the appellant despite the constitutional nature of the litigation

The appeal was dismissed with costs.

The binding legal principles established are: (1) For contempt of court to be established, an applicant must prove beyond reasonable doubt that the respondent deliberately and mala fide breached a court order - unreasonable non-compliance that is bona fide does not constitute contempt; (2) Once the executive authority tables legislation before a provincial legislature, the legislative authority vests exclusively in that legislature under section 104(1) of the Constitution, and the Premier's only remaining power is to assent and sign or refer back under section 121(1); (3) An order to give effect to constitutional obligations "as far as it is within [the respondent's] authority and powers" is complied with when the respondent takes all steps within their constitutional powers, even if the ultimate legislative outcome is delayed by processes beyond their control; (4) Where a respondent raises a genuine dispute as to whether non-compliance was wilful and mala fide, and provides a reasonable explanation (such as reliance on legal advice), the contempt application must fail on the papers.

The Court made several significant observations: (1) It noted that the appellant, being an attorney, should have been familiar with the relevant constitutional provisions and principles relating to contempt of court, particularly since he had launched identical proceedings in North West Province and threatened similar applications in KwaZulu-Natal; (2) The Court observed that the Premier was compelled to defend an application seeking his imprisonment and incur unnecessary costs ultimately paid by taxpayers; (3) While affirming the general Biowatch principle that in constitutional litigation between private parties and government, if government loses it pays costs, and if it wins each party bears own costs, the Court emphasized this rule is not unqualified and does not protect frivolous, vexatious, manifestly inappropriate, unreasonable or unnecessary applications; (4) The Court noted that fairness dictates cost consequences even in constitutional litigation where an applicant persists with a doomed application despite clear explanations of compliance.

This case reinforces important principles regarding contempt of court, the separation of powers between provincial executive and legislative authorities, and costs in constitutional litigation. It clarifies that: (1) contempt requires proof beyond reasonable doubt of wilful and mala fide non-compliance; (2) the legislative authority of a province vests exclusively in its provincial legislature under section 104(1) of the Constitution, and the Premier cannot intervene in the legislative process once a bill is tabled; (3) appeals may be dismissed on mootness grounds under section 16(2)(a)(i) of the Superior Courts Act where the decision sought will have no practical effect; and (4) the Biowatch principle protecting litigants from adverse costs orders in constitutional litigation does not apply where an application is frivolous, vexatious, manifestly inappropriate, unreasonable or unnecessary, even if brought by a private party against government.