Counterpoint Trading CC v IW van der Vyver Incorporated Attorneys and Another

The applicant, Counterpoint Trading CC, had obtained an interim interdict order preventing the respondents (a firm of attorneys and its sole director) from paying out monies held in trust that were allegedly stolen. A final order was granted on 16 September 2020, but the applicant failed to serve it timeously on the respondents; it was only served on 16 October 2020, a month later. During the intervening period, the respondents, unaware the final order had been granted and believing the interim order had lapsed, communicated with the applicant's erstwhile attorneys about deductions from the trust monies for wasted costs and damages. Receiving no protest, they completed their conveyancing mandate, deducted certain amounts, and paid the remainder to the applicant's attorneys. The applicant then brought contempt of court proceedings seeking the second respondent's imprisonment for 30 days. The initial application for contempt was dismissed with costs. The applicant then sought leave to appeal that dismissal, eleven months later, requiring a condonation application for the delays.

• Whether the respondents could be held in contempt of court when the final interdict order was not served on them timeously and they were unaware of its existence.
• Whether the applicant's application for leave to appeal had a reasonable prospect of success.
• Whether the applicant's prolonged delays in prosecuting the leave to appeal application should be condoned.
• Whether contempt of court proceedings could be used as a mechanism to enforce payment of an alleged civil debt.

1. The application for condonation was granted. 2. The application for leave to appeal was refused. 3. The applicant was ordered to pay the respondents' costs on the party and party scale (Scale B if applicable).

For contempt of court to be established, the court order must be properly brought to the attention of the alleged contemnor; where there is a genuine, albeit mistaken, belief of being entitled to act in a certain way, and where the party was unaware of the final order due to the applicant's own failure to serve it timeously, a finding of contempt — which requires wilfulness and mala fides — cannot be sustained. Leave to appeal should only be granted where there is a reasonable prospect of success, applying the more stringent test under the Superior Courts Act.

The court observed that the applicant bore little or no regard for the court rules, considering how it elected to litigate. It also noted that even if the applicant's other civil remedies had become prescribed due to the effluxion of time, the court was not obliged to rescue the applicant by ordering incarceration to promote collection of a civil debt, especially since imprisonment for debt has been abolished by legislation (Abolition of Civil Imprisonment Act 2 of 1977).

The case reinforces the principle in South African law that for civil contempt of court to be established, there must be both knowledge of the court order and wilful or mala fide disobedience. It confirms that failure to serve a court order timeously on the respondent can defeat a contempt application. It also illustrates the stricter test for granting leave to appeal post-Ramakatsa and affirms that the abolition of civil imprisonment for debt prevents using contempt proceedings as a debt-collection mechanism.