Snowy Owl Properties 284 (Pty) Ltd v Celliers and Another (1295/2021) [2023] ZASCA 37 (31 March 2023)

The case involves Snowy Owl Properties 284 (Pty) Ltd (the appellant) and Norman Celliers along with Mziki Shareblock Limited (the respondents). The appellant is the registered owner of immovable properties known as the remainder of the Farm Fagolweni No. 16156 and the remaining extent of the Farm Ntabankosi No. 14594, both situated in KwaZulu-Natal. The first respondent, Norman Celliers, is the chairman of the second respondent, Mziki Shareblock, a shareblock company that owns Portion 1 of Farm Fagolweni. The properties owned by the appellant and Mziki are contiguous pieces of land.

In 1990, the appellant and Mziki registered a notarial deed of servitude granting reciprocal servitudes to each other for the purpose of traversing the land to view wild game. This deed was registered in the Pietermaritzburg Deeds Office under No. K1287/90. Clause 3 of the notarial deed established the reciprocal servitudes, while clause 4.2.8 specified that the right of traverse for viewing wild game between sunset and sunrise required the consent and supervision of the landowner's representative.

In 2015, the appellant sought an interdict in the high court to restrain Mziki and its members, including Mr. Celliers, from traversing the appellant’s farm contrary to clause 4.2.8 of the notarial deed. The application was dismissed by Steyn J on a point in limine, stating that the matter should have been referred to arbitration as per clause 4.3 of the notarial deed. The appellant's application for leave to appeal was also dismissed, but the Supreme Court of Appeal granted leave to appeal, directing the full court to entertain the appeal.

On 24 May 2019, the full court granted an order in favour of the appellant, interdicting and restraining Mziki and its members from traversing the appellant’s land between sunset and sunrise unless in accordance with clause 4.2.8. The order required prior written consent, supervision by the appellant’s representative, adherence to conditions set by the appellant, and payment of charges determined by the appellant.

Despite this order, the appellant alleged that the respondents failed to comply. The appellant's attorneys sent an email to Mziki’s attorneys on 30 May 2019, attaching the full court order and requesting confirmation that it would be communicated to all relevant persons. This email received no response. On 1 July 2019, the appellant’s attorneys sent a letter to Mziki’s members, informing them of the court order and urging compliance. On the same day, Mr. Celliers sent a WhatsApp message to Mziki’s members, advising them to await feedback from the board and not to be intimidated by the appellant’s communication.

On 8 July 2019, Mr. Celliers responded to the appellant’s letter, acknowledging the court order but asserting that it only addressed night drives and not the broader rights of traverse. He claimed that Mziki and its members were willing to comply with the order regarding night drives.

During Mziki’s annual general meeting (AGM) on 13 July 2019, chaired by Mr. Celliers, disparaging remarks were allegedly made about the judges who presided over the full court. The appellant contended that these remarks were intended to undermine the court order. The minutes of the AGM, which were annexed to the appellant’s application for contempt of court, included statements by Mr. Celliers that were critical of the judges and suggested that the court order was not clear or final.

The appellant also provided photographs taken on various occasions showing Mziki members traversing the appellant’s land after sunset, in violation of the court order. The respondents argued that the recording of the AGM minutes was done secretly and in breach of Mziki’s policies, thus violating their constitutional right to privacy. They applied to strike out the recording from the proceedings.

The high court dismissed the appellant’s application for contempt of court, finding that the evidence did not show that the individuals who breached the court order were influenced by Mr. Celliers or acting on behalf of Mziki. The high court also found that the recording of the AGM minutes was incomplete and inadmissible.

The appellant appealed to the Supreme Court of Appeal, which found that the respondents were in contempt of the full court order. The court ordered the respondents to take steps to prevent further contraventions of the order and to ensure compliance with the rules. The respondents were also ordered to pay the costs of the application and the appeal on an attorney and client scale.

The ratio decidendi, or core legal principle underlying the decision in this case, is centered on the enforcement of court orders and the principles of contempt of court. Specifically, the Supreme Court of Appeal reaffirmed the following key legal principles:

1. Obligation to Comply with Court Orders: The court emphasised that all members of society, including individuals and entities, are obligated to respect and comply with court orders. Disobedience towards court orders undermines the rule of law and the authority of the judiciary.

2. Elements of Contempt of Court: To establish contempt of court, the applicant must prove:
 a. An order was granted against the alleged contemnor.
 b. The alleged contemnor was served with the order or had knowledge of it.
 c. The alleged contemnor failed to comply with the order.

3. Burden of Proof in Contempt Cases: Once the applicant establishes the above elements, wilfulness and mala fides (bad faith) are presumed. The respondent then bears the evidentiary burden to establish a reasonable doubt regarding their wilfulness and mala fides. If the respondent fails to discharge this burden, contempt is established.

4. Distinction Between Coercive and Punitive Orders: The court distinguished between coercive and punitive orders in contempt proceedings. Coercive orders aim to compel compliance with a court order, while punitive orders seek to punish the contemnor for past non-compliance. The standard of proof varies depending on the nature of the remedy sought.

5. Civil Standard of Proof for Coercive Remedies: In cases where the remedy sought is coercive (e.g., mandamus or structural interdict), the civil standard of proof (balance of probabilities) applies. This was the applicable standard in this case, as the appellant sought to compel compliance with the court order.

6. Responsibility of Organizational Leaders: The court held that organizational leaders, such as Mr. Celliers in his capacity as chairman of Mziki, have a responsibility to ensure that their members comply with court orders. Failure to do so can result in the organisation and its leaders being held collectively liable for contempt.

In summary, the ratio decidendi of this case is that court orders must be respected and complied with, and failure to do so can result in a finding of contempt. The burden of proof shifts to the respondent to disprove wilfulness and mala fides once the applicant establishes the basic elements of contempt. Organisational leaders have a duty to ensure compliance with court orders by their members.

The Supreme Court of Appeal relied on several key cases in its reasoning process. Here are the case laws and their citations:

1. Matjhabeng Local Municipality v Eskom Holdings Ltd and Others:
 [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC)
 This case was cited to reaffirm the principles of contempt of court and the distinction between coercive and punitive orders.

2. Fakie NO v CCII Systems (Pty) Ltd:
 [2006] ZASCA 52; 2006 (4) SA 326 (SCA)
 This case was referenced to establish the burden of proof in contempt proceedings and the presumption of wilfulness and mala fides once the applicant has proven the basic elements of contempt.

3. Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2):
 [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC)
 This case was cited to emphasise the importance of upholding the dignity and authority of the courts and the foundational value of the rule of law.

4. S v Mamabolo:
 [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC)
 This case was referenced to define contempt of court and its implications for the administration of justice.

5. Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others:
 [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC)
 This case was cited to explain the purpose of contempt of court proceedings and the necessity of enforcing court orders to maintain judicial authority.

6. Fischer and Another v Ramahlele and Others:
 [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA)
 This case was mentioned in the concurring judgment to discuss the admissibility of evidence and the limitations on what can be considered by an appellate court.