Snowy Owl Properties 284 (Pty) Ltd v Celliers and Another

Snowy Owl Properties 284 (Pty) Ltd (appellant) was the registered owner of immovable properties (Farm Fagolweni No 16156 and remaining extent of Farm Ntabankosi No 14594) in KwaZulu-Natal. Norman Celliers (first respondent) was chairman of Mziki Shareblock Limited (second respondent), which owned Portion 1 of Farm Fagolweni, contiguous to the appellant's land. In 1990, the parties registered a notarial deed of servitude (K1287/90) granting reciprocal servitudes for traversing land to view wild game. Clause 4.2.8 required that traversing between sunset and sunrise could only occur with the landowner's consent, under supervision of an authorised representative, and under conditions determined by the landowner. On 24 May 2019, the Full Court of the KwaZulu-Natal Division granted an order interdicting Mziki and persons deriving rights through it from traversing the appellant's land between sunset and sunrise unless in accordance with clause 4.2.8 of the servitude. The respondents subsequently failed to comply with this order. On 30 May 2019, the appellant's attorneys notified Mziki's attorneys of the order, but received no response. On 1 July 2019, the appellant's attorneys wrote to Mziki members about the order. Mr Celliers circulated a WhatsApp message advising members to refrain from responding and not to be intimidated. On 8 July 2019, Mr Celliers responded claiming the order only addressed night drives after sunset and that Mziki retained rights to traverse before sunrise and after sunset. At a 13 July 2019 AGM, Mr Celliers made disparaging remarks about the judges. Photographs from August and September 2019 showed motor vehicles with Mziki logos traversing the appellant's land after sunset. The appellant launched a contempt of court application in the high court, which was dismissed. The high court applied the criminal standard of proof and found the evidence insufficient, and struck out the transcript of the AGM as inadmissible.

• Whether the respondents were in contempt of the full court order dated 24 May 2019
• What is the appropriate standard of proof in civil contempt proceedings seeking different remedies (coercive vs punitive)
• Whether the high court erred in applying the criminal standard of proof (beyond reasonable doubt) instead of the civil standard (balance of probabilities)
• Whether wilfulness and mala fides are presumed once the elements of contempt are established
• Whether the respondents discharged the evidential burden to disprove wilfulness and mala fides
• Whether the evidence (photographs, text messages, correspondence) established non-compliance with the court order
• Whether the transcript of the AGM was admissible evidence

The appeal succeeded. The high court order was set aside and replaced with the following order: (a) The first and second respondents were found to be in contempt of the full court order of 24 May 2019. (b) Within 30 days, the respondents must: (i) introduce rules to prevent the second respondent, its members, and all persons deriving rights through it from contravening the order; and (ii) take steps to ensure compliance with such rules. (c) The respondents, together with Mziki members and all persons deriving rights through Mziki, shall not engage in conduct having the effect of non-compliance with the full court order. (d) The respondents to pay costs of the high court application, jointly and severally, on an attorney and client scale. The respondents were ordered to pay costs of the appeal, including the application for leave to appeal in the high court, jointly and severally, on an attorney and client scale.

The binding legal principles established are: 1. In civil contempt proceedings where the remedies sought do not involve deprivation of personal freedom (such as declaratory relief, mandamus, or structural interdicts), the applicable standard of proof is the civil standard on a balance of probabilities, not the criminal standard beyond reasonable doubt. 2. Once an applicant in contempt proceedings establishes (a) the existence of a court order against the alleged contemnor, (b) that the contemnor was served with or had knowledge of the order, and (c) non-compliance with the order, wilfulness and mala fides are presumed. 3. The evidential burden then shifts to the respondent/alleged contemnor to establish a reasonable doubt regarding wilfulness and mala fides. Failure to discharge this burden results in a finding of contempt. 4. In the context of entities such as shareblock companies, those in control (directors, chairpersons) have a duty to take steps to ensure that members and persons deriving rights through the entity comply with court orders affecting the entity. They can be held collectively liable for non-compliance by members where they fail to take such steps. 5. Conduct demonstrating deliberate undermining of court orders, such as advising members to disregard orders, characterising orders as "intimidation tactics," and failing to investigate or prevent non-compliance, establishes wilfulness and mala fides. 6. Attorney and client costs are appropriate where conduct demonstrates wanton and total disregard of a court order, reflecting the punitive nature of such costs.

Several obiter observations were made: 1. Mali AJA observed (at para 18) that allegations of Mr Celliers making disparaging remarks about judges "deserve to be investigated and sanctioned by the relevant bodies including the Human Rights Commission and or the National Prosecuting Authority, if so advised." This was not part of the ratio but a suggestion for further action by other bodies. 2. Hughes JA (with Masipa AJA concurring) made important observations about appellate review and admissibility of evidence. Hughes JA noted that the Court should not have included references to the alleged disparaging remarks about the judiciary in the judgment, as the high court had declared the AGM transcript inadmissible and the Supreme Court of Appeal had not made a finding that the high court erred in that regard. Hughes JA stated that an appellate court is confined to evidence that was admitted before the court below, and can only bring in new questions of law mero motu where they emerge fully from admitted evidence and are necessary for the decision (citing Fischer v Ramahlele). 3. The Court observed (at para 19) that the respondents' attitude was that the full court order was wrong and that Steyn J's order (dismissing the matter on the basis it should go to arbitration) was correct. The Court noted that if respondents believed the order was wrong, the remedy under Rule 42(1)(a) was available but was not invoked. 4. The Court noted (at para 26) that the respondents "refuse to see the court order for what it is," characterising their conduct as disingenuous in relying on technical arguments (photos unclear, security guards unsure) while failing to investigate or produce evidence as promised.

This case is significant in South African law for several reasons: 1. It clarifies and applies the distinction between coercive and punitive contempt orders established in Matjhabeng Local Municipality v Eskom Holdings Ltd regarding the appropriate standard of proof. Where civil contempt remedies do not involve deprivation of freedom (declaratory relief, mandamus, structural interdicts), the civil standard of proof on a balance of probabilities applies. The criminal standard (beyond reasonable doubt) applies only where remedies involve committal or fines affecting personal freedom. 2. It reaffirms the constitutional importance of compliance with court orders under section 165 of the Constitution, emphasising that disobedience risks rendering courts impotent and judicial authority a mockery. 3. It demonstrates that once the basic elements of contempt are established (existence of order, service/knowledge, non-compliance), wilfulness and mala fides are presumed and the evidential burden shifts to the alleged contemnor to establish reasonable doubt. 4. It illustrates how courts will hold parties accountable for deliberate undermining of court orders through conduct such as advising others to disregard orders, characterising orders as "intimidation," and failing to take steps to ensure compliance. 5. It demonstrates that in shareblock or similar collective contexts, those in control can be held collectively liable for ensuring members comply with court orders affecting the entity. 6. It affirms that punitive costs on an attorney and client scale are appropriate where conduct demonstrates wanton disregard of court orders. The minority judgment also raises important considerations about the limits of appellate review and the treatment of evidence declared inadmissible by the court below.