THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1140/2020

In the matter between:

FORMER WAY TRADE AND
INVEST (PTY) LTD t/a PREMIER
SERVICE STATION                                              FIRST APPELLANT

LEE BENTZ

SECOND APPELLANT

and

BRIGHT IDEA PROJECTS 66 (PTY) LTD
t/a ALL FUELS

RESPONDENT

Neutral citation: 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 (1140/2020) [2021] ZASCA 175 (14 December 2021)

Coram:
VAN DER MERWE, MAKGOKA, PLASKET, MBATHA
and MABINDLA-BOQWANA JJA

Heard:
16 November 2021

Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and released to SAFLII.
The date and time for hand-down of the judgment is deemed
to be 10h00 on 14 December 2021.

Summary: Contempt of court – requisites for contempt satisfied – wilful
disregard of the order and mala fides proved on the part of the appellants –
duty to comply with court orders – appeal dismissed.
___________________________________________________________

ORDER
___________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Govender AJ sitting as court of first instance):
The appeal is dismissed with costs.

___________________________________________________________

JUDGMENT
___________________________________________________________

Mbatha JA (Van der Merwe, Makgoka, Plasket and Mabindla-
Boqwana JJA concurring):

[1] On 22 April 2020, the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (the high court) declared the first appellant, Former Way
Trade and Invest (Pty) Ltd t/a Premier Service Station, to be in contempt
of court. The second appellant, Mr Lee Bentz, as the controlling mind of
the first appellant, was committed to prison for that contempt for a period
of 30 days wholly suspended on certain conditions. Aggrieved by these
orders, the appellants appealed to this Court with the leave of the high
court.

[2] The background of the matter is as follows. The respondent, Bright
Idea Projects 66 (Pty) Ltd t/a All Fuels and the first appellant, became
parties to a franchise agreement. In terms thereof, the first appellant
operated a Caltex filling station at premises owned by the respondent and
with fuel products supplied to it by the respondent. At all times relevant
hereto, the second appellant was the sole shareholder and director of the
first appellant. During 2017, however, a dispute arose between the parties
to the franchise agreement. The respondent took the stance that the
franchise agreement would come to an end on 31 December 2017. The first
appellant, on the other hand, alleged that a new franchise agreement had
been entered into, which conferred on it the right to continue to conduct
business on the premises for a period of five years from 1 March 2015,
with a right of renewal.

[3] The respondent consequently launched an application in the high
court for the eviction of the first appellant from the premises. The first
appellant, in turn, filed a counter-application in which it sought an order
enforcing the alleged new franchise agreement, alternatively a stay of the
application pending an arbitration that the first appellant had initiated. The
main application and counter-application came before Poyo-Dlwati J on 22
January 2018. Both the litigants were represented by senior counsel. The
parties managed to reach an agreement. By consent Poyo-Dlwati J made
that agreement an order of court (the consent order). It provided for the
postponement of the main application and counter-application and for the
filing of further affidavits.

[4] Paragraphs 6 and 7 of the consent order provided as follows:
‘6.
Pending final determination of the main application and the counter-application:
(a)
the parties shall conduct themselves as if the franchise agreement remains of
full force and effect and comply with their respective obligations as defined in the
franchise agreement;
(b)
the Respondent shall source all of its petroleum products from the Applicant,
who shall, in turn, supply same to the Respondent.
(It is recorded that the Respondent had placed a further order with Fueltech, on 19
January 2018, and agreed that the aforegoing shall not apply to the execution of that
order).
7.
It is recorded that the Respondent’s consent to this order is granted without
prejudice to the Respondent’s defences raised in its answering affidavits, including its
claim to a stay of these proceedings pending determination by arbitration either in terms
of Section 12B of the Petroleum Products Act, 1977, and/or the franchise agreement.’

[5] For the period commencing on 22 January 2018 to 27 July 2019, the
appellants complied with the terms of the consent order. On 24 July 2019,
the attorneys for the appellants addressed a letter to the respondent’s

attorneys stating that whilst being aware of the pending litigation and
arbitration proceedings between the parties, the first appellant was
aggrieved by the alleged gross overcharging for supplies and failure by the
respondent to follow the industry guidelines in respect of pricing. The
appellants’ attorneys intimated that the first appellant would source
supplies at better prices elsewhere and that they had advised their client to
go ahead and do so. They further stated that the respondent must by no later
than the close of business on Friday, 26 July 2019 table to them and for
their client’s consideration a decent proposal.

[6] On 24 July 2019, in reply to their letter the respondent’s attorneys
reminded the appellants’ attorneys that the consent order obliged the first
appellant to procure all petroleum products from the respondent and
attached a copy of the order for their attention. The respondent’s attorneys
further pointed out that the first appellant’s intended course of action would
amount to contempt of court.

[7] The first appellant attorneys’ response, dated 25 July 2019, was as
follows:
‘Unfortunately, we:
1. Firstly, do not agree that the order is good and/or valid or capable of implementation
since no binding “contract” can exist without a price.
2. Secondly, we do not see that our directive to your client to comply with ‘lawful’
pricing as opposed to unilaterally imposed prices violates the order as it must be implied
that the prices underlying paragraph 6 of the order have to be in accordance with
industry standards if there are any.’
In response thereto, the first appellant’s attorneys were reminded by the
respondent’s attorneys that the order which obliged the first appellant to
purchase petroleum products from the respondent was taken by consent.
The correspondence ended with a sound warning to this effect:

‘I trust that you have advised your client of the consequences of the breach of a High
Court order.’

[8] Despite the tense exchange of letters the first appellant placed an
order for petroleum products on 25 July 2019, which were delivered and
paid for by the first appellant on 29 July 2019. Unexpectedly, on 30 July
2019, the first appellant’s attorneys emailed a letter to the respondent
stating that no further orders will be placed with the respondent until it
responded fully to its letter of 24 July 2019. It is common cause that the
first appellant proceeded to source various petroleum products from other
distributors and sold those products from the premises of the respondent,
using the respondent’s equipment and brand name, Caltex.

[9] By that time, the main application and counter-application had not
been finally determined. Therefore, the respondent approached the high
court on an urgent basis for a rule nisi operating as an interim interdict. It
cited the first and second appellants as the first and second respondents
respectively. On 21 August 2019 Bezuidenhout J issued a rule nisi calling
upon the appellants to show cause why the following order should not be
made final:
‘2.1
THAT the first respondent is declared to be in contempt of court in failing to
comply with paragraph 6 of the order (“the order”) granted by the Honourable Madam
Justice Poyo Dlwati on 22 January 2018 under case number 283/2018 P;
2.2
THE second respondent be committed to prison for such period as this
Honourable Court may determine for the first respondent’s contempt of paragraph 6 of
the order granted by the Honourable Madam Justice Poyo Dlwati on 22 January 2018
under case number 283/2018 P;
2.3
THAT the first respondent is interdicted and restrained from conducting the
business of a fuel retail service station as Caltex Premier Service Station (alternatively
any other fuel retail service station, from the premises described as Sub 27 of Lot 2725,
Pietermaritzburg Administrative District of Natal, Province of KwaZulu-Natal and

situated at 238 Albert Luthuli Street, Pietermaritzburg, KwaZulu-Natal) on any basis
other than sourcing all its fuel from the applicant in compliance with paragraph 6 of the
order of this court granted on 22 January 2018 under the present case number;
2.4
IN the event of the first and second respondents failing to comply with the
provisions of paragraph 2.3 above, then . . . the first respondent is interdicted and
restrained from conducting the business of a fuel retail service station as Caltex Premier
Service Station alternatively any other fuel retail service station, from the premises
described as Sub 27 of Lot 2725, Pietermaritzburg Administrative District of Natal,
Province of KwaZulu-Natal and situated at 238 Albert Luthuli Street, Pietermaritzburg,
KwaZulu-Natal;
2.5
IN the event of the first and second respondents failing to comply with either of
the provisions of paragraph 2.3 or 2.4 above, . . . the Sheriff or his duly authorised
representative/s is authorised to do all things necessary to give effect to paragraphs 2.3
or 2.4 above;
2.6
THAT the first and second respondents are ordered to pay the costs of this
application, jointly and severally the one paying the other to be absolved, on an attorney
and own client scale . . .’
He also ordered that paras 2.3 and 2.4 of the rule nisi operate as an interim
interdict with immediate effect, pending the finalisation of the application.

[10] On the extended return date, K Govender AJ confirmed the rule nisi.
As I have said, the order committed the second appellant to prison for a
period of 30 days, wholly suspended on condition that the first appellant
complies fully with the consent order.

[11] Before I deal with the issues raised on appeal, it is appropriate that I
briefly set out the law on contempt of court proceedings. This Court in
Fakie N O v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326
(SCA), among others, found that the contempt of court proceedings has
survived constitutional scrutiny and is a necessary tool to enforce
compliance of court orders. To be successful in contempt of court

proceedings the applicant needs to prove the existence of an order; service
or notice thereof; non-compliance; wilfulness and mala fides beyond any
reasonable doubt. Once the first three requisites are established, the
respondent bears the evidential burden in relation to wilfulness and mala
fides. If he or she fails to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful or mala fide, contempt
would have been established beyond a reasonable doubt.

[12] In Pheko and Others v Ekurhuleni City (II) [2015] ZACC 10; 2015
(5) SA 600 (CC) para 1, the Constitutional Court stated as follows:
‘The rule of law, a foundational value of the Constitution, requires that the dignity and
authority of the courts be upheld. This is crucial, as the capacity of the courts to carry
out their functions depends upon it. As the Constitution commands, orders and
decisions issued by a court bind all persons to whom and organs of state to which they
apply, and no person or organ of state may interfere, in any manner, with the functioning
of the courts. It follows from this that disobedience towards court orders or decisions
risks rendering our courts impotent and judicial authority a mere mockery. The
effectiveness of court orders or decisions is substantially determined by the assurance
that they will be enforced.’
The court emphasised that when a court order is disobeyed, not only the
person named or party to the suit but all those, with knowledge of the order,
aided and abetted the disobedience or wilfully are party to the disobedience
are liable.1

[13] It was common cause or undisputed that the appellants had
knowledge of the consent order. As I have demonstrated, it was also
common cause that the second appellant caused the first appellant to
disobey the consent order by sourcing petroleum products from other

1 Pheko and Others v Ekurhuleni City (II) [2015] ZACC 10; 2015 (5) SA 600 (CC) para 47; Twentieth
Century Fox Fil Corporation and Others v Playboy Films (Pty) Ltd and Another 1978 (3) SA 202 (W)
at 203.

suppliers than the respondent. The appellants raised only two points on
appeal, namely, first, that the consent order was ‘inchoate and incapable of
implementation’ and second, in the alternative, that the non-compliance
with the consent order had not been wilful.

[14] The first point was based on the contention that the franchise
agreement was unenforceable or invalid because it did not state prices for
the fuel products nor provided for a method of determination thereof.
Clause 6.3 of the franchise agreement provided:
‘The FRANCHISEE will pay CALTEX the CALTEX invoice price for all CALTEX
products sold by Caltex to it under the contract’.
With reference to Shell SA (Pty) Ltd v Corbitt and Another 1986 (4) SA
523 (C) at 526, the high court held that the franchise agreement had
allowed the respondent to charge its usual, normal or current prices and
that therefore the prices were determinable. Save for pointing out that it
was not appropriate to interpret the clause of the franchise agreement
without having regard to its context, it is not necessary to determine
whether this approach was correct.

[15] This is so because the consent order created self-standing
obligations. In its contextual setting the consent order clearly provided that
pending the final determination of the main application and counter-
application and without prejudice to the first appellant’s rights, the
appellants would continue to operate a Caltex filling station as before, that
is, as if the franchise agreement remained of full force and effect. Thus, as
an interim measure, the first appellant was bound not only to source all the
petroleum products from the respondent, but also to pay the invoiced prices
for these products, as it had done since 2015.

[16] To the extent that the appellants might have intended to say that the
first appellant’s conduct had not been mala fide, they carried the burden to
adduce evidence that created a reasonable doubt as to whether the first
appellant had in good faith believed that it was entitled to source petroleum
products from other suppliers than the respondent. In the light of the
circumstances under which the consent order was made, the compliance
with it from January 2018 to July 2019 and the contents of the
correspondence referred to above, their evidence did not raise a reasonable
doubt as to the first appellant’s mala fides. The second point can be briefly
disposed of. The non-compliance with the consent order was clearly
deliberate, that is wilful. The appeal must therefore fail.

[17] Before I conclude, I am constrained to comment on the decision of
the high court to grant leave to appeal to this Court.  Section 17(6)(a) of
the Superior Courts Act 10 of 2013 reads as follows:
‘(6)(a) If leave is granted under subsection (2)(a) or (b) to appeal against a decision of
a Division as a court of first instance consisting of a single judge, the judge or judges
granting leave must direct that the appeal be heard by a full court of that Division,
unless they consider –
(i)
that the decision to be appealed involves a question of law of
importance, whether because of its general application or otherwise, or in
respect of which a decision of the Supreme Court of Appeal is required to
resolve differences of opinion; or
(ii)
that the administration of justice, either generally or in the particular
case, requires consideration by the Supreme Court of Appeal of the decision, in
which case they must direct that the appeal be heard by the Supreme Court of
Appeal.’

[18]     Thus, ordinarily, leave to appeal against a decision of a single Judge
of a division of the high court should be granted to the full court of the
relevant division. Leave to this Court should only be given after the Judge

is satisfied that the requirements of (i) and (ii) of s 17(6)(a) are satisfied.
In the present case, it is not clear whether these provisions were considered
when granting leave to this Court. The appeal involves no question of law
of importance. There are no differences of opinion to be resolved by this
Court. There is no suggestion that the administration of justice, either
generally or in this case, requires consideration by this Court. On these
considerations, if the high court was minded to grant leave, it should have
granted it to the full court, and not to this Court.

[19] In the result, the following order is made:
The appeal is dismissed with costs.

________________________
Y T MBATHA
JUDGE OF APPEAL

Appearances:
For appellants:
B G Savvas
Instructed by:
K Swart & Company c/o Stowell & Company,

Pietermaritzburg

Honey Attorneys, Bloemfontein.

For respondent:
D Ramdhani SC
Instructed by:
Norton Rose Fulbright South Africa Inc.,
c/o Venns Attorneys, Pietermaritzburg
Webbers Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

14 DECEMBER 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
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 (1140/2020) [2021] ZASCA 175 (14 December 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing the appeal against and
order of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the high court), which held the
first appellant, Former Way Trade and Invest (Pty) Ltd t/a Premier Service Station, in contempt of court
and committed the second appellant, Mr Lee Bentz, to a suspended term of imprisonment.
Bright Idea Projects 66 (Pty) Ltd t/a All Fuels (the respondent), and the first appellant became parties
to a franchise agreement. In terms thereof, the first appellant operated a Caltex filling station at premises
owned by the respondent and with fuel products supplied to it by the respondent. At all times relevant
hereto, the second appellant, was the sole shareholder and director of the first appellant. During 2017,
however, a dispute arose between the parties to the franchise agreement. The respondent took the
stance that the franchise agreement would come to an end on 31 December 2017. The first appellant,
on the other hand, alleged that a new franchise agreement had been entered into which conferred on
it the right to continue to conduct business on the premises for a period of five years from 1 March 2015,
with a right of renewal.
The respondent consequently launched an application in the high court for the eviction of the first
appellant from the premises. The first appellant, in turn, filed a counter-application in which it sought an
order enforcing the alleged new franchise agreement, alternatively a stay of the application pending an
arbitration that the first appellant had initiated. The main application and counter-application came
before Poyo-Dlwati J on 22 January 2018. The parties managed to reach an agreement. By consent,
Poyo-Dlwati J made that agreement an order of court (the consent order). It provided that the parties
shall conduct themselves as if the franchise agreement remains of full force and effect and comply with
their respective obligations. Furthermore, the consent order provided that the first appellant shall source
all its petroleum product from the respondent. However, after July 2019, the first appellant proceeded
to source various petroleum products from foreign distributors and dispensed them from the premises
of the respondent, using the respondent’s equipment and brand name, Caltex. As a result, the
respondent approached the high court on an urgent basis for a rule nisi operating as an interim interdict.
The rule nisi inter alia called upon the first appellant to show cause why it should not be held in contempt
of the consent order. The high court subsequently confirmed the rule nisi and committed the second
appellant to prison for a period of 30 days, wholly suspended on condition that the first appellant
complies with the consent order.
The SCA held that the consent order clearly provided that pending the final determination of the main
application and counter-application and without prejudice to the first appellant’s rights, it would continue
to operate a Caltex filling station as before, that is as if the franchise agreement remained of full force
and effect. Thus, as an interim measure, the first appellant was bound not only to source all the

requirements in respect of petroleum products from the respondent, but also to pay the invoiced prices
for these products, as it had done since 2015. Furthermore, the SCA held that it is not in the interest of
the litigants and the courts to bring an appeal to the SCA which does not involve an important question
of law or requires consideration by this Court. This was such a matter and it should have been referred
to the full court.

~~~~ends~~~~