Ntsoareng v Municipal Manager and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cronjé AJ
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3186 (FB)
• Hearing Date: 27 July 2023
• Docket Number: 3804/2023
• Court: Free State Division, Bloemfontein

Cronjé AJ:

[1]

The Applicant brought an urgent application for the First Respondent (the Municipal Manager) to be found in contempt of an order granted by the Magistrate of Ficksburg (the Magistrate) under case number 72/2023. The Municipal Manager should be committed to imprisonment for a period of thirty (30) days or such period as this Court deems appropriate. The imprisonment should be suspended for a period of six (6) months on condition that the Municipal Manager complies with the Magistrate’s order within 24 hours.

[2]

The Respondents did not file any papers as the application was moved on an urgent basis. [1] The application was issued on 24 July 2023 and set down for 27 July 2023. On 27 July 2023, a Notice of intention to oppose was filed. A return of service in respect of the papers shows that they were served on 24 July 2023 on the Municipality.

[3]

It is common cause that the Municipality discontinued the Applicant’s electricity supply on 7 March 2023. On the next day, the Applicant instituted spoliation proceedings and on 11 April 2023, the Magistrate ordered that the electricity supply be restored and the Respondents and/or all other persons be ordered not to disturb the Applicant and/or his tenants and/or any other person occupying the properties access to electricity.

[4]

The Applicant alleges that the Magistrate’s order was served on the Respondents on 13 April 2023. On 18 July 2023, the Magistrate issued an interim order extending the rule nisi to 25 July 2023. In terms thereof the final order of that court was stayed pending the finalisation of a recission application. The Applicant was interdicted from enforcing the spoliation order. On 25 July 2023, the Magistrate made an order that the rule nisi be extended to 2 August 2023. The proceedings in that court are thus not finalised.

2023 JDR 3186 p3

[5]

In paragraph 24 of the founding affidavit in this Court, it is stated that the Respondents acted in contempt of the final order issued by “this Honourable Court (the High Court). In paragraph 45 it is repeated that it was an order of the High Court. The matter was allegedly set down in the High Court and on 18 July 2023, Van Rhyn J allegedly opined that the Applicant had not dealt with the reasons why the Respondents discontinued the electricity supply to the premises. The matter was removed from the roll. This is the high-water mark of any nexus between the application before me and what happened in the Magistrate’s Court.

[6]

When the matter was called I raised the question whether this Court, in view of Section 106 of the Magistrate’s Court Act, [2] has jurisdiction to entertain the contempt proceedings. The section reads:

“Penalty for disobedience of judgment or order of court [3] .—Any person wilfully disobeying, or refusing or failing to comply with any judgment or order of a court or with a notice lawfully endorsed on a summons for rent prohibiting the removal of any furniture or effects shall be guilty of contempt of court and shall, upon conviction, be liable to a fine, or to imprisonment for a period not exceeding six months or to such imprisonment without the option of a fine.”

[7]

I requested both parties to provide short Heads of Argument on whether this Court has jurisdiction.

[8]

Mr Mohono, for the Applicant, referred me to Huysamen and Others v Bluechip...