Monde Austin Shude v The Member of the Executive Council, Department of Education and Another

The applicant, a retired educator who retired on 31 January 2014, obtained a court order on 20 January 2022 (Case No. 782/18) directing the respondents (Department of Education officials) to take administrative steps in collaboration with the Government Employees Pension Fund to recognize his uninterrupted pensionable service from 1 February 1974 to 31 January 2014. The order was served on the respondents on 1 February 2022 and 23 March 2022. Despite acknowledgment of receipt on 24 March 2022 and promises to comply, the respondents failed to comply with the order. The applicant brought a further application (Case No. 299/2022) on 13 May 2022 seeking compliance. A second court order was granted on 26 March 2024, again directing compliance within 20 days, but the respondents still failed to comply. The applicant then set down an application for contempt of court. The respondents only complied on or about 27 November 2024, after the matter was set down for hearing on 13 February 2025.

• Whether the respondents' failure to comply with court orders of 20 January 2022 and 26 March 2024 constituted contempt of court
• Whether the respondents violated their constitutional obligations under sections 2, 165(5) and 237 of the Constitution
• What is the appropriate costs order, including the applicable scale under the new Rules 67A and 69 of the Uniform Rules of Court
• What constitutes civil contempt of court in South African law

1. The respondents are ordered to pay the party and party costs of the applicant. 2. For all legal services pertaining to this application rendered by Counsel after 12 April 2024, the costs of Counsel shall be taxed on Scale C of rule 69(7) of the Uniform Rules of Court.

1. Court orders issued under section 165(5) of the Constitution bind all persons and organs of state to whom they apply, and failure to comply constitutes a violation of constitutional obligations. 2. Section 237 of the Constitution requires that all constitutional obligations be performed diligently and without delay, and this principle has as its foundation the necessity for administrative finality and certainty. 3. Civil contempt consists of willful and mala fide disobedience of a court order. Once failure to comply with a court order has been established, willfulness will normally be inferred, and the onus rests on the person who failed to comply to rebut the inference of willfulness on a balance of probabilities. 4. Under the new Rules 67A and 69 of the Uniform Rules of Court, the appropriate scale for costs should be determined with regard to the complexity of the matter and the value or importance of the relief sought. While Scale A is the default for run-of-the-mill cases, higher scales (B or C) may be justified where the case involves unusually complex, important or valuable issues, including constitutional violations by organs of state.

The court observed that it is becoming a norm and in compliance with the amended rules of court that when a court grants a costs order, it should grant them in accordance with Rule 67A read with Rule 69. The court noted that organs of state are expected at all times to comply with constitutional obligations without delay and should be an example to the general public, showing the importance of abiding by the provisions of the Constitution diligently and without delay. The court emphasized that the conduct of the respondents in taking so much time to comply with the court order was unacceptable, particularly noting that they only complied after the matter was set down for an opposed hearing. The court also commented on the continued relevance of the distinction between civil and criminal contempt, noting that civil contempt involves disobedience of court orders and bears a twofold character: as between parties it implies a right to civil execution, but as between the party in default and the state, it involves penal or disciplinary jurisdiction exercised by the court in the public interest.

This case is significant for several reasons: (1) It reinforces the constitutional imperative that organs of state must comply with court orders diligently and without delay, as required by sections 2, 165(5) and 237 of the Constitution; (2) It clarifies that civil contempt of court involves willful and mala fide disobedience of court orders, and once non-compliance is established, willfulness is normally inferred; (3) It provides guidance on the application of the new Rules 67A and 69 of the Uniform Rules of Court (which came into operation on 12 April 2024) regarding costs, particularly that Scale C may be appropriate where constitutional obligations are violated even if the matter is not particularly complex; (4) It emphasizes that organs of state have a higher duty to comply with constitutional obligations and court orders, and should set an example to the public; (5) It demonstrates that delays in compliance with court orders, even if eventual compliance occurs, can result in findings of contempt and punitive costs orders.