Former Way Trade and Invest (Pty) Ltd t/a Premier Service Station and Another v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels

The respondent (Bright Idea Projects 66) and first appellant (Former Way Trade and Invest) were parties to a franchise agreement whereby the first appellant operated a Caltex filling station on the respondent's premises with fuel supplied by the respondent. The second appellant (Lee Bentz) was the sole shareholder and director of the first appellant. A dispute arose in 2017 regarding whether the franchise agreement had terminated or been renewed. The respondent launched an eviction application, and the first appellant counter-applied for enforcement of an alleged new franchise agreement. On 22 January 2018, the parties reached a settlement by consent before Poyo-Dlwati J (the consent order), which provided that pending final determination, the parties would conduct themselves as if the franchise agreement remained in full force and effect, with the first appellant sourcing all petroleum products from the respondent. The first appellant complied from January 2018 to July 2019. In July 2019, after correspondence claiming overcharging, the first appellant's attorneys advised they would source fuel elsewhere. Despite warnings that this would constitute contempt, from 30 July 2019 the first appellant sourced petroleum products from other suppliers. The respondent obtained a rule nisi on 21 August 2019, which was confirmed by Govender AJ on 22 April 2020, declaring the first appellant in contempt and committing the second appellant to 30 days' imprisonment, wholly suspended on condition of compliance with the consent order.

• Whether the consent order was valid and enforceable despite the alleged lack of specified prices in the franchise agreement
• Whether the requisites for contempt of court were established beyond reasonable doubt
• Whether non-compliance with the consent order was wilful and mala fide
• Whether leave to appeal should have been granted to the Supreme Court of Appeal rather than to a full court of the High Court

The appeal was dismissed with costs.

A consent order creates self-standing obligations that must be complied with regardless of any alleged defects in underlying agreements. For contempt of court to be established, the applicant must prove beyond reasonable doubt: (1) the existence of an order; (2) service or notice thereof; (3) non-compliance; (4) wilfulness; and (5) mala fides. Once the first three requisites are established, the respondent bears the evidential burden regarding wilfulness and mala fides - if they fail to advance evidence establishing reasonable doubt, contempt is proved. Deliberate non-compliance with a court order after warnings that such conduct would constitute contempt demonstrates both wilfulness and mala fides beyond reasonable doubt. Court orders must be obeyed to uphold the rule of law and the authority of the courts; disobedience renders courts impotent and judicial authority a mockery.

The court commented that leave to appeal should ordinarily be granted to a full court of the relevant division rather than directly to the Supreme Court of Appeal when appealing from a decision of a single judge sitting as a court of first instance. Section 17(6)(a) of the Superior Courts Act requires that leave to the SCA should only be granted where the decision involves a question of law of importance requiring resolution by the SCA, or where the administration of justice requires SCA consideration. In this case, none of these requirements were met, and the High Court should have granted leave to a full court if minded to grant leave at all. The court also affirmed (citing Shell SA (Pty) Ltd v Corbitt) that a contract clause allowing a party to charge its 'invoice price' is sufficiently certain as it permits charging usual, normal or current prices, though the court noted it was unnecessary to definitively determine this point given that the consent order created independent obligations.

This case reinforces the fundamental principle of the rule of law requiring strict compliance with court orders. It confirms that contempt of court proceedings remain a necessary and constitutionally valid tool for enforcing compliance with court orders. The judgment emphasizes that consent orders create self-standing obligations that parties must comply with regardless of disputes about underlying agreements. It also clarifies the requirements for establishing contempt: existence of an order, service/notice, non-compliance, wilfulness and mala fides (all beyond reasonable doubt), with the respondent bearing the evidential burden regarding the latter two elements. The case demonstrates that deliberate non-compliance with a court order after clear warnings constitutes contempt. It also provides guidance on the proper application of section 17(6)(a) of the Superior Courts Act regarding when leave to appeal should be granted to the SCA versus a full court.