R.J v M.P (2024/068129) [2024] ZAGPPHC 686 (5 July 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 686 | Noteup | LawCite sino index ## R.J v M.P (2024/068129) [2024] ZAGPPHC 686 (5 July 2024) R.J v M.P (2024/068129) [2024] ZAGPPHC 686 (5 July 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_686.html sino date 5 July 2024 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA 1. REPORTABLE : YES/NO 2. Of INTEREST TO OTHER JUDGES : YES/NO 3. REVISED : YES/NO 5 July 2024 Case number: 2024/068129 In the matter between: R[....] J[. ...] APPLICANT and M[.. ..] P[.. ..] RESPONDENT JUDGMENT MARX DU PLESSIS, AJ Introduction 1. Before me is an application for contempt of court. The application came before me in the Family Court as one of urgency. 2. The respondent raised a point in limine regarding the validity of the applicant's founding affidavit and the authenticity of the applicant's signature appended thereto. After hearing argument, the point in limine was dismissed with costs. The reasons here for do not form part of this judgment as this has been dealt with in an extempore judgment. Background facts 3. The background facts appear from the parties' respective affidavits filed in the application before me as well as a previous urgent application which forms part of the Caselines file, and to which I was referred. 4. The parties were engaged in a romantic relationship pursuant to which their son, referred to herein as MJ, was born. MJ is currently 3 (three years) and 6 (six) months of age. 5. The parties agreed that MJ would primarily reside with the respondent, and until October 2023 the parties were able to arrange and regulate the applicant's contact with MJ amongst themselves and without resorting to litigation. The parties' agreement regarding their respective parental responsibilities and rights in respect of MJ was reduced to writing during March 2022, but their agreement was never made an order of court. 6. During November 2023, the applicant engaged the respondent and attempted to make holiday arrangements which entailed taking MJ to George for a period of 7 (seven) days over the 2023 Christmas period. The applicant's request for contact with MJ during December 2023 was rejected by the respondent. The respondent indicates that the applicant's request was initially approved but ultimately rejected as the applicant had not communicated to her the dates on which he intended to remove MJ. 7. Shortly after the applicant's request for contact was refused by the respondent, the applicant was served with an interim protection order issued by the Domestic Violence Court in favour of the respondent on 18 December 2023, one day before the applicant planned on leaving for George. Based on the interim protection order, and the length of the intended holiday to George, the applicant's further request to remove MJ to George for 7 (seven) days during December 2023 was rejected. 8. The respondent, through her attorneys, knowing of the applicant's intention to leave for George on 20 December 2023, indicated that the respondent was not of the intention to prohibit contact between the applicant and MJ, and asked the applicant at what time he would collect the minor child for his contact weekend starting on 22 December 2023 until 24 December 2023, a period during which the respondent knew the applicant would not be in Gauteng. 9. Eventually, and during or about February 2024, the parties settled the proceedings in the Domestic Violence Court, and it was agreed, inter alia, that the respondent would withdraw the application for a protection order in relation to MJ. 10. The respondent was required to attend Cape Town for business during April 2024 and she, through her attorneys, requested the applicant to exchange their respective contact weekends, and suggested that the applicant exercise contact with MJ during her trip to Cape Town from 22 April 2024 to 25 April 2024. The applicant's contact weekend was scheduled to take place from 26 April 2024 until 28 April 2024. 11. The effect of the exchange of weekend contact would result in the applicant not exercising contact with MJ for the period 26 April 2024 until 28 April 2024. The effect of the parties' failure to exchange contact weekends would be that MJ would not have contact with the respondent from 22 April 2024 until 28 April 2024. 12. The respondent's request in relation to the exchange of weekend contact was denied by the applicant, but the applicant indicated that he was willing to care for MJ while the respondent was in Cape Town. 13. The applicant's refusal was met with the following response from the respondent's attorney of record: "4. Your client's refusal to exchange the contact weekend has a sever effect on the minor child, the minor child is of such a young age that being away from his mother, being the primary caregiver, for such a long period of time is not in his best interest. 5. We remind you that the current contact arrangement are an informal agreement between the parties pending the outcome of mediation. It is saddening that the parties have worked well together the past two weeks when the minor child was sick and yet your client now turns around and sets back the progress that has been made. 6. In light of the above do we confirm our instructions that our client will collect the minor child from his school on the 26 th of April 2024 upon her return, should your client obstruct our client to collect the minor child will such conduct result in a criminal matter being instituted. 7. Should your client persist with his refusal to exchange the weekend contact will our client make alternative arrangements pertaining to the care of the minor child for the 22 nd - 25 th of April 2024 whereby your client can then still have his contact on the weekend of the 26th of April 2024." (sic) [1] 14. Despite the above threats, MJ remained in the care of the applicant from 22 April 2024 until 28 April 2024. Shortly after MJ's return to the care of the respondent, and on 1 May 2024, the respondent complained of MJ conducting himself inappropriately, and proceeded to suspend the applicant's contact with MJ, tendering one hour of supervised contact every second Saturday. 15. The applicant proceeded to launch an urgent application against the respondent, seeking inter a/ia, an interim order formalising and defining contact between him and MJ. It is apparent that the need for this stemmed from the fact that in the absence of a court order or formal agreement, the respondent regulated the applicant's contact with MJ as she saw fit. 16. The respondent opposed the relief sought by the applicant and in fact sought an order dismissing the application, denying that the applicant is entitled to any contact with MJ whatsoever, but also submitting that a healthy relationship between the applicant and MJ is important to her. 17. On the date of hearing of the application, 21 May 2024, the parties agreed to the content of a draft order which was subsequently made an order of court ('the May 2024 order). [2] In terms of the May 2024 order, an expert is appointed to conduct an investigation and to prepare a forensic report on certain specified aspects, and the applicant is awarded supervised contact with MJ. 18. The relevant portions of the court order provide as follows: "2. That the Applicant be awarded contact with the minor child in the following manner: 2.1 Telephonic contact every day as arranged on the existing WhatsApp Group. 2.2 Physical contact, under supervision of Mr. Owen Ne/ I alternatively the maternal grandfather of the minor son along with Mrs. Sonja Theron every alternative Saturday or Sunday for a maximum of 4 (four) hours, at a public venue to be arranged between the respective Legal Representatives, or on the existing WhatsApp Group on the condition that Mr Ne/ alternatively the maternal grandfather of the minor son and Mrs. Sonja Theron shall attend solely as observers and not take part in any conversation between the Applicant and the Minor Child." (sic) The facts precipitating the contempt application 19. The applicant exercised supervised contact in terms of the May 2024 order on two occasions, both occasions being marred by some incident or complaint. 20. Arrangements were made for the applicant to have contact with MJ in terms of the May 2024 order on 26 May 2024. Initially, the applicant requested permission to take MJ to church and to a restaurant thereafter. The applicant confirmed that a family member and the child of the family member would accompany him and MJ to the restaurant. 21. The respondent denied the applicant's request on the basis that the court order does not provide for the applicant to travel with the parties' minor child. No objection was raised to the applicant and MJ being accompanied by a family member and the family member's child. 22. After conclusion of the contact session, and on 27 May 2024, the respondent, through her attorneys, informed the applicant that they were of the view that he had contravened the provisions of the May 2024 order by allowing third parties to attend the contact sessions. The applicant was threatened with a contempt application and criminal complaints. 23. According to the applicant, the contact session on 26 May 2024 was observed by the respondent's legal representative who had taken photographs of him,and the other persons present, and Mr Nel appeared to have recorded or shared the contact session via videocall. 24. The attendance of the respondent's legal representative at the contact session between the applicant and MJ on 26 May 2024 was confirmed by the respondent's attorney who also recorded that he attended the contact session on instruction of the respondent and that the purpose of his attendance was to prove the applicant's deliberate failure to adhere to the provisions of the court order. 25. From the correspondence exchanged between the parties' respective attorneys pursuant to the contact session on 26 May 2024, it is apparent that the parties interpret the provisions of paragraph 2.2 of the May 2024 differently. 26. The applicant is of the view that the order does not restrict contact between MJ and his mother, Mrs. Theron, but simply provides that she is not to interrupt or interject in a conversation between him and MJ. 27. The respondent on the other hand is of the view that the May 2024 order prohibits any and all contact between the MJ and the appointed observers. Based on the use of the words 'solely' to describe and designate the purpose and functions of the appointed supervisors during the contact sessions between MJ and the applicant, I am inclined to agree with the respondent's interpretation of paragraph 2.2 of the May 2024 order. 28. Despite the parties' differing interpretations of the May 2024 order, contact was scheduled for, and took place on, 9 June 2024. This occurred after the respondent sought, and was given, an undertaking by the applicant that he would adhere to the provisions of the court order. 29. During the contact session on 9 June 2024, MJ had picked a flower for his grandmother, Mrs. Sonja Theron. When MJ saw her, he approached her and handed the flower to her. As any grandmother would, she engaged MJ, and they had an interaction with one another. The respondent denies that the interaction was a simple exchange of a flower between a grandmother and her grandson. The respondent relies on closed circuit video footage that she obtained from restaurant at which the contact session took place. Unfortunately, the video footage uploaded onto Caselines could not be accessed. 30. On 10 June 2024, the applicant requested to exercise contact with MJ on Father's Day. This request was denied by the respondent on 12 June 2024 on the basis that contact on Father's Day is not provided for in terms of the May 2024 order and that Father's Day does not fall on a weekend during the which the applicant was entitled to exercise contact. 31. In the same correspondence dated 12 June 2024, the respondent's attorney records that the applicant again contravened the May 2024 order by allowing an interaction to take place between MJ and Mrs. Theron, and that MJ displayed behavioural changes after conclusion of the contact session. The behavioural changes are not identified or discussed. 32. The respondent then proceeded to terminate the applicant's physical contact with MJ, as a result of which the applicant launched the application for contempt presently before me. Principles applicable to contempt of court applications 33. Our law on contempt of court is well established. Contempt of court is defined as "the deliberate, intentional (i.e., wilful), disobedience of an order granted by a court of competent jurisdiction". [3] 34. Contempt proceedings serve three important purposes namely,[1] protecting the rights of everyone to fair trials, [2] maintaining public confidence in the judicial arm of government, and [3] upholding the integrity of court orders. [4] 35. The Supreme Court of Appeal in Fakie N.O. v CCII Systems (Pty) Ltd [5] held: " The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed 'deliberately and ma/a fide'. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). These requirements - that the refusal to obey should be both wilful and ma/a fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court's dignity, repute, or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent." 36. Additionally, the SCA went on to summarise the rationale and requirements for civil contempt as being: [6] "(a) The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements. (b) The respondent in such proceedings is not an accused person but is entitled to analogous protections as are appropriate to motion proceedings. (c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and ma/a tides) beyond reasonable doubt. (d) But, once the applicant has proved the order, service or notice, and no"n­ compliance, the respondent bears an evidential burden in relation to wilfulness and ma/a tides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and ma/a fide, contempt will have been established beyond reasonable doubt." 37. In summary, an applicant in a contempt application must establish [1] the court order; [2] service or notice of the order; [3] non-compliance with the terms of the order; and [4] wilfulness and ma/a fides. [7] But, once an applicant has proved [1], [2] and [3] the respondent bears an evidentiary burden in relation to [4]. 38. In Pheko and Others v Ekurhuleni Metropolitan Municipality, [8] Nkabinde J restated that: "Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of the court or its officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders. .. Wilful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence. The object of contempt proceedings is to impose a penalty that will vindicate the court's honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order." 39. In Matjhabeng Local Municipality v Eskom Holdings Limited [9] and Others; Mkhonto and Others v Compensation Solutions (Pty) Limite the principles applicable to the onus of proof in contempt proceedings were clarified as follows: ' ... I am of the view that the standard of proof must be applied in accordance with the purpose sought to be achieved, differently put, the consequences of the various remedies. As I understand it, the maintenance of a distinction does have a practical significance: the civil contempt remedies of committal or a fine have material consequences on an individual's freedom and security of the person. However, it is necessary in some instances because disregard of a court order not only deprives the other party of the benefit of the order but also impairs the effective administration of justice. There, the criminal standard of proof - beyond reasonable doubt - applies always. A fitting example of this is Fakie. On the other hand, there are civil contempt remedies - for example, declaratory relief, mandamus, or a structural interdict - that do not have the consequence of depriving an individual of their right to freedom and security of the person. A fitting example of this is Burchell. Here, and I stress, the civil standard of proof- a balance of probabilities - applies.' [10] 40. Because the relief sought in this contempt application is committal to imprisonment, the criminal standard of proof of beyond a reasonable doubt applies. [11] The onus is therefore not the ordinary civil onus, (i.e., on a balance of probabilities), but instead one of beyond reasonable doubt. 41. As such, if, on a conspectus of all the evidence, there is a reasonable possibility that non-compliance with the court order in issue was not wilful and ma/a fide, contempt is not established. [12] 42. Furthermore, where most of a court order has been complied with and the non­ compliance is in respect of some minor matter only, the Court will take the substantial compliance into account, and will not commit for a minor non­ compliance, i.e. an applicant must show a material non-compliance with the court order. [13] 43. What constitutes a material non-compliance will depend on the circumstances prevailing at the time of non-compliance. Application of the legal principles to the facts 44. In these proceedings, it is common cause that (a) a court order exists; (b) the respondent has knowledge of the court order; and (c) the respondent has refused to allow the applicant to exercise his rights of physical contact with MJ in terms thereof, i.e. non-compliance by the respondent. The respondent's wilful non-compliance and ma/a tides are in dispute. 45. It is evident from the discussion of the relevant facts above that the parties interpret the May 2024 order differently. There can be no doubt that their varying interpretations of the May 2024 order contributed to the respondent's belief that the applicant was in contravention of the May 2024 order, prompting her, on her version, to suspend the applicant's rights in terms of the May 2024. In doing so, the respondent took the law into her own hands. 46. Prior to the first contact session in terms of the May 2024 order, the applicant, while arranging the contact session, informed the respondent that he and MJ would be accompanied by third parties during the course of their contact session. 47. The respondent denied the applicant's request to take MJ to church and then to a restaurant and provided no response whatsoever to the applicant's notification to her about the third parties. 48. The respondent's non-response and failure to object to the attendance of third parties during the contact session is evidence of her acceptance of their attendance, and their right to attend the contact session, and I am of the view that the applicant genuinely, even if mistakenly, believed that he was entitled to proceed as he did. 49. Therefore, any complaint by the respondent in relation to third parties attending the contact session is in my view baseless and cannot serve as support for the respondent's decision to suspend the applicant's contact in terms of the May 2024 order. 50. MJ is a young child of 3 (three) years and seven (7) months. At his age, MJ is starting to learn about sharing and developing relationships, relationships which will shape the way he approaches life and sees himself and the world. Relationships with family and friends affect all areas of a child's development. 51. It is imperative for a child of MJ's age to have meaningful contact and engagements with the adults in his life, even more so the adults with who he already shares a bond and attachment. 52. In view of MJ's age and developmental stage, it is natural for MJ to want to engage with his grandmother as he did during the contact session on 9 June 2024. Had there been a sudden interruption of their interaction, this would certainly, at the very least, have caused MJ to become upset, impacting negatively on the already limited time MJ was to spend with the applicant. 53. I find the respondent's insistence that there be no interaction between MJ and his grandmother at all very unreasonable, particularly in view of the fact that no allegations of improper conduct are made against Mrs Theron, whether directly or by implication, by the respondent. 54. It was argued that Mrs Theron and her conduct, the nature of which is not disclosed at all, is what started and forms the basis of the disputes between the parties, particularly the restriction of contact between the applicant and MJ and MJ and the applicant's family. 55. When asked why this was never disclosed on any of the papers filed of record, it was submitted that there was much of Mrs Theron's conduct and the history of the parties that the Court does not know of, and which is not on the papers. 56. The respondent's assertions in relation to Mrs Theron are not borne out by the papers and had her concerns regarding the conduct of Mrs Theron been genuine, and the source of her initial complaints and concerns as argued, surely allegations to this effect and in relation thereto would have been contained in the affidavits filed of record, particularly in view of the fact that the respondent is accused of acting ma/a fide. 57. Although I agree that in terms of the May 2024 order there may be no interaction or engagement between MJ and Mrs Theron, the interaction is a minor infraction of the May 2024 order and does not warrant the suspension of the applicant's rights in terms thereof. 58. It appears from the conduct of the respondent, which is set out and addressed in the preceding paragraphs, particularly her refusal to allow reasonable requests for contact between MJ and the applicant, her refusal to allow holiday visits, as well as her constant threats of criminal prosecution and contempt proceedings against the applicant should he not do as she wishes in relation to MJ, that the respondent's suspension of the applicant's contact with MJ in terms of the May 2024 order may be wilful. 59.  I am however mindful of the allegations regarding the concerning conduct and behaviour displayed by MJ and that the respondent may in fact be motivated thereby to protect MJ at all costs. 60. Whether there is any merit to the allegations regarding MJ's conduct and the need to protect him in the way the respondent has, a way that encroaches heavily on the rights of the applicant and his family, remains to be seen and will only be known once the report of Marita Rademeyer has been published. 61. As a result, and in the absence of the report by Marita Rademeyer, I am unable to determine whether the respondent's conduct, although apparently unreasonable, is wilful and ma/a fide. For this reason, I am of the view that the appropriate order would be to postpone the prayers relating to a finding of contempt and the appropriate sanction should a finding of contempt be made. Amendment of the May 2024 order 62. In order to avoid any future disputes surrounding the May 2024 order and the manner in which the applicant's contact rights are to be exercised in terms thereof, I deem it necessary to amend the May 2024 order in such a way that the parties are left with no doubt as to the circumstances under which the applicant is to exercise contact with MJ and what the roles of the appointed supervisors are. 63. During the hearing I asked to be addressed on my powers to amend or vary the existing May 2024 order. Both counsel appearing argued that I was not empowered to do so as there was no application for variation pending before me. 64. In terms of the provisions of Rule 42(1) of the Uniform Rules of Court, a Court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary an order or judgment in which there is an ambiguity, but only to the extent of such ambiguity. 65.  I therefore propose to amend the May 2024 order as set out hereunder. Conclusion 66.  I have already expressed certain concerns regarding the conduct of the respondent and the reasonableness of her refusal of some of the applicant's requests for contact with MJ. 67. The respondent is in a position of power, this is the case by virtue of the fact that she is MJ's primary caregiver and his primary place of residence vests with her. The respondent has exerted her power as MJ's primary caregiver, this is evident from her conduct set out above. 68. The respondent clearly thinks that this position of power she finds herself in allows her the authority to enforce the May 2024 in the manner she deems fit. This is not the case, The respondent is reminded that, just as the applicant, she is bound by the provisions of the May 2024 order and must comply therewith. 69. The purpose of the May 2024 order is to protect MJ while allowing both MJ and the applicant to share time with one another, in a protected environment, pending the publication of Marita Rademeyer's report. While awaiting the report, the May 2024 order should not serve or be used to oppress anyone affected thereby, or to achieve an ulterior end. 70. The respondent cannot, as she has done until now, suspend or alter the applicant's conduct as she deems fit, that is function and power reserved for this Court. 71. The parties are implored to conduct themselves in a manner which serves and promotes MJ's best interests. Their conduct and decisions affect him now, and always, and will inevitably have a lasting effect on him and the man he is to become. I make the following order: 1. Paragraph 2 of the court order dated 21 May 2024, granted by Francis Subbiah J, is deleted and replaced with the following: "2. The Applicant is awarded contact with the minor child, which contact he is to exercise in the following manner: 2.1 Telephonic contact every day as arranged on the existing WhatsApp Group. 2.2 Physical contact, under supervision of Mr. Owen Ne/ alternatively the maternal grandfather of the minor child and Mrs. Sonja Theron every alternative Saturday or Sunday for a maximum of 4 (four) hours, at a public venue to be arranged between the respective Legal Representatives, or between the parties on the existing WhatsApp Group, on the condition that Mr Owen Ne/ alternatively the maternal grandfather of the minor son and Mrs. Sonja Theron shall attend the contact sessions between the Applicant and the minor child solely and exclusively as observers. Mr Owen Ne/ alternatively the maternal grandfather of the minor child and Mrs.Sonja Theron shall not take part in the contact sessions between the Applicant and the minor child and shall not engage in any conversation or interaction with the minor child and/or the Applicant during such contact sessions. 2. The Respondent is directed to restore the Applicant's contact rights to MJ, born on 29 January 2021, with immediate effect. 3. The Applicant shall be entitled to exercise contact with MJ during the upcoming weekend either on the Saturday or Sunday (6 July 2024 or 7 July 2024), as well as every alternative weekend thereafter, in accordance with paragraph 2 of the order dated 21 May 2024, as amended in terms of paragraph 1 hereof. 4. Prayers 2, 5, 6 and 7 of the applicant's notice of motion dated 20 June 2024 is postponed sine die. 5. Should the respondent fail to comply with paragraphs 2 and 3 hereof, the applicant is entitled to approach this court, on the same papers, duly supplemented, for an order in terms of prayers 2, 5, 6 and 7 of the notice of motion. 6. The respondent is ordered to pay the costs of enrolment of, and the argument of, the matter on the urgent roll of 2 July 2024. All other costs are reserved. Date of Hearing: 2 July Judgment delivered: 5 July 2024 Appearances: Counsel for the applicant: A. Koekemoer Counsel for the respondent: J. Brand SC [1] The respondent, through her attorneys, have made various similar threats to the applicant. Additionally, the respondent's assertion that the length of the contact period for which MJ would be in the applicant's care is not in MJ's best interest is, in my view, rendered meritless by the fact that the respondent, on her own version, was willing to allow MJ to remain in the care of a third party for the duration of her trip to Cape Town after which she would allow the applicant to exercise contact with MJ as usual. MJ would then in any event be away from the respondent, not in her care, for the same duration, but MJ would just not be in the care of the applicant. The respondent's proposal is also contrary to the earlier written agreement concluded between the parties in terms whereof it was agreed that each party would have the right of first refusal to look after MJ should the other party be unable to do so for a period exceeding 2 (two) hours. It is however accepted that this agreement was no longer applicable at the time of the respondent's proposal. [2] It was argued by counsel appearing for the respondent that the May 2024 order is effectively a contract between the parties and that the respondent's refusal to allow the applicant contact in terms thereof was justified and permitted as the applicant, by his conduct, committed a breach of contract which in turn entitled the respondent to renege on the terms and conditions thereof. This approach is not correct. An order made bv agreement between parties or which embodies an agreement between the parties, eniovs the status of a court order. See Eke v Parsons 2016 (3) SA 37 {CC) and Compensation Solutions {Pty) Ltd v Compensation Commissioner {2016) 37 ILJ 1625 {SCA). [3] Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) 2015 (5) SA 600 (CC) (Pheko II) at 617A­ B; Minister of Home Affairs v Scalabrini Centre 2013 (6) SA 421 (SCA) at 443H-I; and NW Civil Contractors CC v Anton Ramaano Inc 2020 (3) SA 241 (SCA) at para [6] [4] Milton, South African Criminal Law and Procedure (Vol II: Common Law Crimes) (3 ed), Juta and Co: 1996 at 165 [5] [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA) at para 9 [6] Fakie N.O. supra at para 42 [7] Tasima (Pty) Ltd v Department of Transport 2016 1 All SA 465 (SCA) [8] Pheko v Ekurhuleni Metropolitan Municipality supra at para 28 [9] Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions {Pty) Limited 2018 (1) SA 1 {CC) [10] Matjhabeng Local Municipality supra at para 63 [11] Matjhabeng Local Municipality supra at para 63 and 73 [12] See Fakie NO v CCII Systems (Pty) Ltd supra at para 14; Matjhabeng Local Municipality supra at para 67 and 85-88 [13] Pheko and Others v Ekurhuleni Metropolitan Municipality City supra at para 37 sino noindex make_database footer start