The Sheriff of The High Court: Giyani (Sydney Herbert Park, An Officer of the Court) v Renky Thulani Makhubele

The appellant, a sheriff of the high court in Giyani, was ordered by the high court on 26 July 2023 (the July order) to release and pay funds of R219,541.41 realized from a sale in execution within 48 hours into the respondent's attorney's trust account. The sheriff filed an application for leave to appeal the same day. The respondent applied under s 18(3) of the Superior Courts Act for immediate execution. The high court granted an interim preservation order on 8 August 2023 reiterating the transfer requirement. The sheriff's application for leave to appeal was dismissed on 5 September 2023. The sheriff's attorneys informed the respondent's attorneys they would petition the Supreme Court of Appeal and would not transfer the funds pending finalization. On 8 September 2023, the respondent launched a contempt of court application. The sheriff opposed the application and filed a counter-application seeking a stay of execution. The petition to the SCA was filed on 29 September 2023, and the SCA ultimately granted leave to appeal to the full bench. On 24 October 2023, the high court found the sheriff in contempt and imposed a R50,000 fine, wholly suspended for two years on condition of no similar offense.

• Whether the appellant acted mala fide in contempt proceedings by not complying with the court order when the one-month period to petition the President of the Supreme Court of Appeal had not expired
• Whether a punitive contempt of court application can be brought in those circumstances
• Whether contempt of court has been established beyond a reasonable doubt
• Whether the high court correctly found the appellant in contempt of its order

The appeal was upheld with costs. The order of the high court finding the sheriff in contempt and imposing a suspended fine was set aside and replaced with an order dismissing the application for contempt of court with costs.

Where a litigant has been granted a statutory period of one month to petition the Supreme Court of Appeal under s 17(2)(b) of the Superior Courts Act and that period has not expired, failure to comply with a court order during that period while pursuing legitimate appellate remedies does not constitute contempt of court. Mala fides and malice, which must be proved beyond reasonable doubt in contempt proceedings, are not established where a party acts within statutory appellate rights and evinces a clear intention to appeal. Acting in accordance with statutory procedures and timelines for appeals demonstrates respect for the law rather than contumacious disrespect for judicial authority. A litigant cannot be compelled to file an appeal or petition within shorter periods than those prescribed by statute simply because a court order requires compliance within a shorter timeframe.

The majority made several important obiter observations: (1) The high court erred in granting an 'interim preservation order' under the guise of a general discretion when dealing with a s 18(3) application for immediate execution, as this remedy was not competent in the circumstances. (2) Section 18(3) requires exceptional circumstances and proof of irreparable harm before execution can be ordered while an appeal is pending. (3) The immediate execution of a court order when an appeal is pending has the potential to cause enormous harm to the party ultimately successful on appeal (citing Knoop v Gupta). (4) It was incorrect for the high court to suggest that the sheriff should have used Rule 45A to suspend the order, as this is used for rescission applications, not appeals where s 18 automatically suspends operation. (5) The minority noted that sheriffs, as officers of the court, are held to high standards and that court orders must be complied with regardless of intention to appeal unless suspended by court order. The minority emphasized that every wilful non-compliance with a court order is in a sense a contempt, and that the one-month period for filing a petition has purely procedural utility but cannot serve as an excuse for refusing to comply with an operative order.

This case clarifies the interaction between contempt of court proceedings and the statutory rights to appeal under the Superior Courts Act. It establishes that exercising one's appellate rights within statutorily prescribed time periods cannot constitute contemptuous conduct, even if compliance with a court order is delayed. The case affirms that contempt requires proof beyond reasonable doubt of deliberate, wilful and mala fide defiance of a court order, not merely technical non-compliance while pursuing legitimate appellate remedies. It reinforces the distinction between enforcing compliance with court orders and punishing contumacious disrespect for judicial authority. The judgment also clarifies the proper application of s 18 of the Superior Courts Act regarding automatic suspension of orders pending appeal, and criticizes the use of 'interim preservation orders' outside the framework of s 18(3). The split decision highlights different judicial approaches to balancing enforcement of court orders against protection of appellate rights.