THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 254/2019
In the matter between:
ANNA MMAKODI THIPE
FIRST APPELLANT
286 DENNEBOON TRADERS
SECOND APPELLANT
and
CITY OF TSHWANE METROPOLITAN
FIRST RESPONDENT
MUNICIPALITY

ISIBONELO PROPERTY SERVICES (PTY) LTD
SECOND
RESPONDENT
THE MUNICIPAL MANAGER: CITY OF TSHWANE
THIRD
RESPONDENT
METROPOLITAN MUNICIPALITY
THE MAYOR: CITY OF TSHWANE
FOURTH RESPONDENT
METROPOLITAN MUNICIPALITY

THE CEO OF ISIBONELO PROPERTY
FIFTH RESPONDENT
SERVICES (PTY) LTD

MOEKETSI MOSOLA
SIXTH RESPONDENT
SOLLY MSIMANGA
SEVENTH RESPONDENT
SHADRACK MTHETHWA
EIGHTH RESPONDENT

Neutral citation: Thipe & Another v City of Tshwane Metropolitan
Municipality & Others (Case no 254/2019) [2020]
ZASCA 131 (16 October 2020)
Coram:
PONNAN, ZONDI and MOLEMELA JJA and WEINER AND
SUTHERLAND AJJA
Heard:
31 August 2020
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives via email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 10h00 on 16
October 2020.
Summary: Appeal against order upholding exception and dismissing
application – the upholding of an exception disposes of the pleading not the
action or defence - appeal succeeds.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Khumalo J,
sitting as court of first instance):
The appeal succeeds.
The order of the high court upholding the exception and dismissing the
claim against the third to eighth respondents is set aside.
The costs occasioned by both the hearing of the exception in the high
court and the appeal shall be costs in the cause.

JUDGMENT

Zondi JA (Ponnan and Molemela JJA and Weiner and Sutherland AJA
concurring)
[1] The appellants are informal traders who, until the occurrence of the
events which gave rise to these proceedings, traded from the Denneboom
Train Station, Mamelodi, Pretoria (the property) in terms of fixed term lease
agreements with the first respondent, the City of Tshwane Metropolitan
Municipality (the City of Tshwane). The second respondent, Isibonelo
Property Service (Pty) Ltd (Isibonelo), is a property development company,
which at the relevant time, was constructing a shopping mall on the property.
MK Africa Construction (Pty) Ltd and Fencesteel (Pty) Ltd were
subcontracted by Isibonelo to carry out some of the construction and bulk
earthworks on the project.

[2] The third respondent is the Municipal Manager of the City of Tshwane
(the Municipal Manager). He was cited both in his official capacity and in his
personal capacity, as the sixth respondent, Mr Moeketsi Mosola. The fourth
respondent is the Mayor of the City of Tshwane (the Mayor). He was also
cited both in his official capacity as the Mayor and in his personal capacity,
as the seventh respondent, Mr Solly Msimanga.1 The fifth respondent was
cited in his official capacity as the Chief Executive Officer (the CEO) of
Isibonelo and in his personal capacity as the eighth respondent, Mr Shadrack
Mthethwa.

1 Neither Mr Mosola, nor Mr Msimanga are presently in office in these capacities.

[3] The third to eighth respondents were not cited as parties when the
application for contempt of court was initially brought and the order granted
by Janse van Nieuwenhuizen did not apply to them. They were only joined as
parties in their official capacities on 1 November 2017 (first joinder
application) and in their personal capacities on 7 November 2017 (second
joinder application).

[4] On 3 February 2017, the Gauteng Division of the High Court, Pretoria
(Rabie J) at the instance of the appellants, Ms Anna Mmakodi Thipe and what
were described as 286 Denneboom Traders, issued a rule nisi, returnable on
28 February 2017. In terms of the rule nisi, the City of Tshwane, Isibonelo,
MK Africa and Fencesteel were called upon to show cause on the return day
why they should not be interdicted from demolishing any structure used by
the appellants, pending their vacation of the property by agreement with the
City of Tshwane or in terms of a court order. MK Africa and Fencesteel were
cited as the third and fourth respondents, respectively in that application.

[5] On 10 February 2017 the matter served before Janse van
Nieuwenhuizen J who, by agreement between the parties, discharged the rule
nisi in its entirety and replaced it with the following order:
‘1.1.
The matters under case numbers 6048/17 and 7922/17 are consolidated.
1.2.
The rule nisi, granted Friday, 3 February 2017 under case number 7922/17 is
discharged.
1.3.
Pending relocation of the traders to the temporary trading facility, the respondents
are interdicted and restrained from:
1.3.1. demolishing any existing structure, fixed or informal, used by the traders for
purposes of trading, in the area currently occupied by them;
1.3.2. unduly interfering with the traders’ trade by:

1.3.2.1.
obstructing delivery of stock to their stalls;
1.3.2.2.
obstructing public road access to their stalls;
1.3.3. disconnecting the water and electricity supply.
1.4.
The applicants are interdicted and restrained from harassing, intimidating or
assaulting any employees, agents or contractors of the respondents, and from causing
damage to public or private property.
1.5.
If any dispute arises about the interpretation, implementation, or breach of the terms
of this order, the parties will be obliged to first attempt to settle the dispute through
conciliation, before approaching the Court for relief.
1.6.
During the construction phase of the Denneboom Station Public Transport
Interchange Development, the respondents will, at the temporary trading area, make
available to the traders:
1.6.1. containers for those traders who currently occupy fixed structures;
1.6.2. trading spaces for those traders who currently occupy informal stalls;
1.6.3. proper ablution facilities, including communal water and electricity.
1.7.
To give effect to the preceding order the first respondent shall within 7 (seven) days
of the granting of this order:
1.7.1. allocate a number to each and every trader at the current trading facility,
differentiating between traders who occupy fixed structures, and traders who
occupy informal stalls;
1.7.2. allocate a corresponding number to a container or trading space, as the case might
be, at the temporary facility;
1.7.3. inform the traders and their attorneys, in writing, accordingly.
1.8.
After the traders have been informed, the traders are ordered to relocate to the
allocated trading spaces at the temporary trading facility within 48 (forty eight) hours of
having been so informed.
1.9.
Commuters from the Denneboom train station shall be diverted to public transport
facilities via the temporary trading area, 48 hours after the traders have relocated to the
temporary trading area.
1.10. The applicants shall provide the 1st respondent with the names and identities of
three people to represent them on the Denneboom Facilities Management Board.

1.11. After having been informed of the names and identities of the applicants’
representatives, the 1st respondent shall forthwith ensure that the representatives are
formally included in the Denneboom Facilities Management Board.
1.12. Determination of the location, layout, design, allocation criteria, and conditions of
occupation and trade, of trading spaces at the Denneboom Station Public Transport
Interchange, shall be done after consultation with the traders, and the parties shall
endeavour to ensure that the trading conditions will in as far as possible be comparable to
the traders’ current trading conditions.
1.13. The parties shall act reasonably and fairly at all stages.
1.14. Costs are reserved.’
(the Janse van Nieuwenhuizen Order)

[6] On 22 September 2017 the appellants’ trading facilities at the property
were demolished. There is a dispute between the parties as to who was
responsible for the demolition. The appellants alleged that the City of
Tshwane and Isibonelo had authorised the demolition. They said that some of
Isibonelo’s employees actively participated in the demolition of their trading
structures and used machinery belonging to Isibonelo to carry out the
demolition. This occurred, the appellants contended, in full view of some of
the City of Tshwane police officers and certain members of the South African
Police Service from the Mamelodi West police station, who did nothing to
protect them, their trading facilities and trading stock.

[7] Following the destruction of their stalls, the appellants’ trading stock
and building material were looted by some members of the community. The
appellants alleged that they suffered damages in the sum of R5 000 each, as a
result of the destruction of their trading structures and stock. The appellants
further alleged that on 26 September 2017, following the destruction of their

trading facilities, Isibonelo in contravention of the Janse van Nieuwenhuizen
Order, erected a fence around the perimeter of the trading area. They
contended that the erection of the fence unlawfully interfered with their trade
as it prevented their customers from accessing their stalls.

[8] On 17 October 2017 the appellants, brought an application in the high
court seeking to hold the City of Tshwane and Isibonelo in contempt of the
Janse van Nieuwenhuizen Order. On 3 November 2017 the appellants filed an
amended notice of motion for the joinder of the Municipal Manager, the
Mayor and the CEO of Isibonelo (the CEO) in their representative capacities
as the third, fourth and fifth respondents. The appellants later, on 7 November
2017, also sought their joinder in their personal capacities as the sixth, seventh
and eighth respondents respectively. The further relief sought was to the
following effect:
‘3.
That the Respondents be and are hereby found to be in contempt of the Order of the
Honourable Mrs Justice Janse Van Nieuwenhuizen under case numbers 7922/17 and
6048/17 granted on 10 February 2017;
4.
That the Sixth to Eighth Respondents be committed to prison for a period of 120
days or such period determined by the Honourable Court;
5.
That the committal of the Sixth to Eighth Respondents to prison be suspended for
1 (one) year on condition that:
5.1
The Respondents within 48 hours of the granting of this order comply with
paragraphs 1.6 and 1.7 of the Order the Honourable Mrs Justice Janse Van Nieuwenhuizen
under case numbers 7922/17 and 6048/17 granted on 10 February 2017;
5.2
That the Respondents within 48 hours of the granting of this order remove the fence
they erected around the perimeter of the Applicants’ trading area;
5.3
The Respondents within 14 days pay to each applicant an amount of R5000.00 as
compensation for the demolishing of their stalls, loss of their stock and violation of their
constitutional rights.

6.
That Respondents be ordered to pay the costs, on an attorney and client scale,
jointly and severally, the one paying the others to be absolved.’

[9] The joinder of the Municipal Manager, the Mayor and the CEO was
sought on the basis that they had a direct and substantial interest in the subject
inasmuch as they are duty bound and obliged to ensure that court orders are
complied with by the City of Tshwane and Isibonelo respectively.

[10] In the answering affidavit deposed to by the eighth respondent, Mr
Mthethwa in his capacity as the CEO of Isibonelo, it was denied that Isibonelo
was in contempt of the Janse van Nieuwenhuizen Order. Isibonelo denied that
its employees or subcontractors, were involved in the demolition of the
appellants’ trading structures. It stated that without their knowledge or
permission, community members and taxi drivers, who had become upset
with the appellants for delaying the completion of the building project, had
seized some of the equipment from the construction site and proceeded to
carry out the demolition. Mr Mthethwa alleged that the situation during the
demolition became very hostile and when Isibonelo’s employees and those of
its subcontractor intervened to stop demolitions they were pelted with stones
forcing them to retreat.

[11] Isibonelo admitted that it erected a fence around the perimeter of the
trading area but denied that the erection of the fence obstructed delivery of
stock or access to the appellants’ stalls. It averred that it fenced off the area
on the instruction of the City of Tshwane because of vandalism at the property.
This affected the supply of water and electricity to the construction site and
the neighbouring properties, occupied by the Mamelodi Shopping Centre and

a Total petrol service station. It further pointed to the several incidents of cable
theft and armed robbery on the construction site. This is not disputed by the
appellants though they contended that Isibonelo should have consulted them
first before fencing-off their trading area.

[12] Isibonelo alleged that in compliance with the court order it supplied
approximately 50 containers, each of which is able to accommodate two
informal traders. In addition, it said it allocated an open space to some of the
informal traders who did not want to use containers. Isibonelo contended
therefore that the contempt of court application was ill-conceived, based on
contrived allegations and constituted an abuse of court process.

[13] In their replying affidavit the appellants admitted that the taxi drivers
were involved in the demolition of their stalls, but denied that only the taxi
drivers were responsible therefor. The appellants stated that the community
members did not participate in the demolition. They only took part in the
looting of their property after the demolition. The appellants further denied
that Isibonelo allocated containers to them.

[14] The City of Tshwane’s answering affidavit was deposed to by Mr
Simon Tshepo Sithole (Director Litigation Management). Mr Sithole
contended that the Municipal Manager and the Mayor were not parties to the
proceedings which came before Janse van Nieuwenhuizen J; that the
appellants failed to set out any basis upon which they became subject to the
court order; that the allegations in the appellants’ founding affidavit did not
establish that the Municipal Manager and the Mayor are the persons who

wilfully, and with knowledge of the court order, failed to comply with its
terms.

[15] Mr Sithole alleged further that as the Municipal Manager and the Mayor
were not parties to the initial application, the order did not operate against
them. He contended that before the court may hold the Municipal Manager
and the Mayor in contempt in their own name, the order should have first been
sought and granted against them. Mr Sithole’s contention was that it does not
follow as a matter of course that any failure to comply by the City of Tshwane,
which was denied, may be attributed to the Municipal Manager and the
Mayor. Mr Sithole contended that the appellants should have joined the
Municipal Manager and the Mayor as parties to the proceedings from the
outset, in both their official and personal capacities and the relief should have
been made operative against them personally, before the appellants brought
contempt proceedings against them.

[16] Mr Sithole, moreover, alleged that meetings took place on a regular
basis between the traders and various representatives from the City of
Tshwane in order to implement the Janse van Nieuwenhuizen Order. He said
these meetings yielded very little results, mostly because the traders kept
moving the goal posts and made outrageous demands. He denied that the City
of Tshwane, its officials and its functionaries had anything to do with the
demolition of the structures.

[17] It is apparent that there existed a stark dispute of fact as to whether the
demolition could be attributed to any conduct on the part of Isibonelo or the
City of Tshwane; whether containers were allocated to the appellants and

whether the erection of a fence was in contravention of the court order. In
short, whether as a matter of fact any of the respondents were indeed in
contempt of the Janse Van Nieuwenhuizen Order.

[18] On 8 November 2017, the matter came before Mphahlele J, who issued
the following order:
‘That the issues raised in prayers 3, 4, 5, 5.3. and 6 [of the Janse Van Nieuwenhuizen Order]
are referred to trial.
That the parties will be entitled to call any witness on its own behalf on condition that a
statement containing the evidence of that witness is filed at least ten (10) days before the
hearing.
That the normal Uniform Rules of Court with regard to trials will be applicable.
That each party must supply the other party with a list of witnesses it intends to call twenty
(20) days before the hearing.’

[19] On 9 February 2018 the appellants’ attorneys wrote to the attorneys for
the City of Tshwane and Isibonelo regarding the further conduct of the matter.
The letter reads as follows in relevant part:
‘We furthermore place on record that the matter was referred to trial by agreement between
the parties.
No specific provisions were made as to the standing of the papers and we propose that the
normal rules apply in this regard, in that the Notice of Motion stand as a simple summons,
the answering affidavits as Notices of Intention to Defend, a declaration shall be delivered
within 15 days of your acceptance of this proposal and thereafter the Uniform Rules of
Court shall apply.’

[20] The reference to the fact that ‘the normal Uniform Rules of Court with
regard to trials will be applicable’ reinforces the view that the rules applicable
to a trial (in relation to pleadings and discovery for example) were to apply.

That notwithstanding, no declaration or further pleading was filed. At the pre-
trial conference held on 13 September 2018, it was recorded on behalf of
Isibonelo that ‘there has not been sufficient compliance with rule 6(5)(g) of
the Uniform Rules of Court.’ Further, the rule 37 minute records that the
Mayor, Municipal Manager and the CEO, who had initially opposed the
application for their joinder to the proceedings, consented to being joined.

[21] On 26 September 2018 the attorneys for Isibonelo addressed a letter to
the appellants’ attorneys in which they complained about the appellants’
failure to take steps to comply with the terms of Mphahlele J’s order. The
letter reads:
‘As discussed during our recent pre-trial conference, we are of the view that it was never
competent for the parties to embark on a course of action that deviates from the clear
directions in the court order of the Honourable Justice Mphahlele, which ordered a referral
of this matter to trial. We accordingly wish to place the following on record:
We submit that it is important for the purposes of this letter to briefly address the
chronology of events:
i.
As you are aware, the Honourable Justice Mphahlele ordered on 8 November 2017
that prayers 3, 4, 5, 5.3 and 6 of your clients’ notice of motion be referred to trial.
ii.
On 9 February 2018, you wrote to the Honourable Deputy Judge President,
requesting a special trial allocation.
iii.
On 20 February 2018, the Deputy President responded with a letter directing you
to approach the Chief Registrar for the allocation of a special date.
iv.
We received a notice of set down of the trial on 9 March 2018.
v.
A period of almost six months passed before your client delivered its notice calling
on the parties to file a discovery affidavit. It is not clear, and neither has your office
explained the exact reason, why your clients have been supine in pursuing this claim, when
there was ample time to exchange proper sets of pleadings since that is the proper manner
of dealing with an application that has been referred to trial.

vi.
In between the correspondence to the Deputy Judge President, we received a letter
from you dated 9 February 2018, proposing that the notice of motion stands as a summons
and the answering affidavit as a notice of intention to defend with a declaration. Shortly
after this letter, we received a further letter from you dated 6 March 2018 indicating that
despite the court order, you proposed that the matter be referred to oral evidence.

The issues that necessitated this matter to be referred to trial are extensive and are broadly
traversed by the affidavits that have been filed by the parties. These affidavits are not the
pleadings contemplated or permissible within the Uniform Rules of Court when a matter
is referred to trial. The affidavits, as they presently stand, do not properly establish the
precise issues that are in dispute or, importantly, the precise nature of such disputes.’

[22] The matter was set down before Khumalo J on 22 October 2018. At the
commencement of the hearing, the City of Tshwane and Isibonelo raised what
was described as an exception on behalf of the third to eighth respondents.
Despite no declaration or formal exception having been filed, the high court
upheld the exception. The high court’s reasoning is set out in the following
passages of the judgment:
‘The cause of action as set out in the summons / Founding Affidavit is devoid of any
averments necessary to sustain a contempt order against the excipient-respondents
justifying their incarceration. The jurisdictional requirements that are to be proven at the
trial, which is the order, service, deliberate non-compliance and the concomitant mala fide
have not been satisfied in relation to the capacity in which the Excipients are allegedly
joined to the proceedings. Consequently there is no basis laid in the Applicants’ Founding
Affidavit / summons for conviction of the Excipient Respondents on contempt.
An official’s non-compliance with a court order must be wilful and mala fide. In general
terms this means that the official in question must, personally, be found to have deliberately
defied the court order. Hence, a public official is cited for contempt in his personal capacity,
the official himself or herself, rather than the institutional structures for which he or she is
responsible, must have wilfully or maliciously failed to comply; see Matjhabeng and the

decision of the SCA in Meadow Glen Home Owners Association and Others v Tshwane
City Metropolitan and Another 2015 (2) SA 413 (SCA) at [20]…
…The material allegations necessary against the Excipients are not in the Applicants’
Founding Affidavit.’

[23] The high court then dismissed the application for contempt against the
third to eighth appellants, but granted them leave to appeal to this Court. The
order of the high court cannot stand. Having upheld the exception, the high
court proceeded to dismiss the application instead of granting leave to the
appellants, if so advised, to amend. As observed in Ocean Echo Properties
327 CC and Another v Old Mutual Life Assurance Company (South Africa)
Limited,2 the upholding of an exception disposes of the pleading against which
the exception was taken, not the action or defence. An unsuccessful pleader is
given the opportunity to amend. The rationale for this is that the pleading as
such continues to exist. Ordinarily therefore the court should grant leave to
amend and not dispose of the matter. Leave to amend is not a matter of an
indulgence; it is a matter of course unless there is a good reason that the
pleading cannot be amended.3 No good reason was evident or asserted in this
case. In those circumstances, counsel for the respondents conceded that,
irrespective of the merits of the exception, the high court ought not to have
proceeded to dismiss the application.

[24] Given the course that the matter had followed the high court would have
been justified in declining to decide the matter on exception. It follows that
the matter must be remitted to the high court. The parties would then be free

2 Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited
[2018] ZASCA 9; 2018 (3) SA 405 (SCA) para 8.
3 Ibid.

to take such steps, as advised, with regard to the further conduct of the
proceedings.

[25] The approach adopted by the appellants to the litigation has been
characterised by several procedural missteps. This has resulted in a series of
piecemeal hearings. It still remains for the high court to determine whether
the respondents originally cited in the Janse Van Nieuwenhuizen Order, as a
matter of fact, acted in wilful disregard of that court order. They contended
that they were not responsible for the demolition of the appellants’ property.
If that version carries the day at trial, then the contempt application against
them must fail. If it fails against them, it can hardly succeed against the other
respondents, who have, subsequent to the grant of the Janse Van
Nieuwenhuizen Order, been joined to the proceedings. Instead of first
resolving the primary factual disputes, the parties allowed the focus to shift to
whether as a matter of law the Mayor, Municipal Manager and CEO can be
held in contempt either in their representative or personal capacities. But,
those questions depend upon the facts found to be proven. Thus as interesting
as those legal questions are likely to be, one may simply not get to them if the
primary factual disputes are resolved against the appellants.

[26] In any event, given the passage of time, it would appear that the
construction has been completed. The appellants had applied for expedited
trial dates. The motivation was inter alia that the matter is ‘sensitive’ because
they ‘seek that the Mayor of Tshwane be held in contempt of court’. The
appellants also pointed out that they would ‘need to subpoena contract
workers of the Respondents to testify with regards to . . . the demolition of the
site. Whilst they are apparently still in the employ of the Respondents, any

delay in the trial would in all probability prove to be to the detriment of the
Appellants’. Whether these witnesses are still available remains to be seen.
There has also been a change in the political leadership of the City of
Tshwane. Accordingly, any order that issues for contempt against the third,
fourth, sixth and seventh respondents is likely to be largely symbolic.

[27] As to costs: Given the general disregard shown by the appellants for the
rules of court in the conduct of the litigation, which has contributed to
piecemeal hearings and this appeal, as also the stark disputes of fact on the
papers, which may yet be resolved against the appellants at trial, the costs
occasioned by both the hearing of the exception in the high court and the
appeal shall be costs in the cause.

[28] In the result:
The appeal succeeds.
The order of the high court upholding the exception and dismissing the
claim against the third to eighth respondents is set aside.
The costs occasioned by both the hearing of the exception in the high
court and the appeal shall be costs in the cause.

_________________
Zondi JA
Judge of Appeal

Appearances:

For appellants:

A de Vos SC (with her Ms M Coetzee)
Instructed by:

Lawyers for Human Rights, Pretoria

Webbers Attorneys, Bloemfontein

For 1st, 3rd, 4th, 6th & 7th respondents: A Vorster (with him K Bokaba)
Instructed by:
Malebye Motaung Mtembu Inc,
Pretoria

Phatshoane Henney Attorneys,

Bloemfontein

For 2nd, 5th & 8th respondents:
B L Manentsa (with him Ms B B
Mkhize and M Mazibuko)

Instructed by:

Adams & Adams Attorneys, Pretoria

Honey and Partners Inc, Bloemfontein