The First Applicant (Magubane) and Second Applicant (Khumalo), half-brothers, resided on Damascus farm in Mpumalanga Province and kept cattle there. The farm was owned by the Second Respondent and managed by the First Respondent (Beukes). On 13 December 2016, the Applicants broke a padlock to remove cattle from the farm for sale. On 14 December 2016, Beukes instructed his farm manager to remove the Applicants' cattle from the farm to his other farm, Goudhoek, without the Applicants' permission. Seventy-three cattle were removed and counted upon arrival at Goudhoek. The Applicants brought an urgent application for restoration of their cattle. An interim order was granted on 5 January 2017 and confirmed on 23 January 2017. Cattle were returned on 10 January 2017 (seventy-five cattle, including three calves born and minus one dead cow). The Applicants claimed not all cattle were returned and sought to hold the Respondents in contempt of court. However, material discrepancies emerged between the numbers claimed in the founding affidavit and the Applicants' testimony in court.
The application was dismissed with no order as to costs.
To succeed in a contempt of court application, an applicant must prove: (1) the existence of a court order; (2) that the order was served on or brought to the notice of the alleged contemnor; (3) non-compliance with the order; and (4) that the non-compliance was willful or mala fide. The onus shifts to the respondent to disprove willfulness only after the applicant has proved the first three requirements. Where there are material and unexplained discrepancies in an applicant's evidence regarding the extent of non-compliance with a court order, the applicant fails to discharge the burden of proving non-compliance, and the contempt application must fail. It is not necessary to consider the element of willfulness or mala fides if non-compliance has not been established.
The court made observations about costs in the Land Claims Court, noting that the practice is not to make cost orders unless there are good reasons to do so, a practice confirmed by the Supreme Court of Appeal in Haak Doutmbly Boerdery CC v Mpela 2007 (5) SA 567 (SCA). The court also commented on the argument for a de bonis propriis costs order against the attorney, observing that discrepancies between papers and oral evidence do not necessarily indicate attorney negligence where the attorney drafted based on information provided by the clients. The court emphasized that the rule of law requires that the dignity and authority of courts be upheld, and disobedience to court orders risks rendering courts impotent, quoting extensively from Pheko v Ekurhuleni City on this point.
This judgment is significant in the context of South African contempt of court law as it reinforces the well-established requirements for proving contempt and emphasizes that applicants bear the burden of proving non-compliance with a court order beyond the mere assertion of non-compliance. The case demonstrates the importance of consistency between pleadings and evidence, particularly in numerical claims. It also confirms the Land Claims Court's practice (approved by the Supreme Court of Appeal in Haak Doutmbly Boerdery CC v Mpela) of not awarding costs except where good reasons exist, reflecting the court's sensitivity to the socio-economic context of land disputes. The judgment highlights the principle that where material discrepancies exist in an applicant's case regarding the very basis of the contempt allegation, the application must fail.