Road Fund Secretariat V Bafani Construction (PTY) LTD & 3 Others (CCA/0048/2024) [2025] LSHC 245 (18 September 2025)

# Road Fund Secretariat V Bafani Construction (PTY) LTD & 3 Others (CCA/0048/2024) [2025] LSHC 245 (18 September 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/245/eng@2025-09-18) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/245/eng@2025-09-18) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/245/eng@2025-09-18) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/245/eng@2025-09-18) [ __](mailto:?subject=Take a look at this document from LesLII: Road Fund Secretariat V Bafani Construction \(PTY\) …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/245/eng@2025-09-18) [ Download PDF (348.1 KB) ](/akn/ls/judgment/lshc/2025/245/eng@2025-09-18/source) Report a problem __ * Share * [ Download PDF (348.1 KB) ](/akn/ls/judgment/lshc/2025/245/eng@2025-09-18/source) * * * * * Report a problem __ ##### Road Fund Secretariat V Bafani Construction (PTY) LTD & 3 Others (CCA/0048/2024) [2025] LSHC 245 (18 September 2025) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Road Fund Secretariat V Bafani Construction (PTY) LTD & 3 Others (CCA/0048/2024) [2025] LSHC 245 (18 September 2025) Copy Media Neutral Citation [2025] LSHC 245 Copy Hearing date 26 August 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCA/0048/2024 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 18 September 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) * [Actions and applications](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-actions-and-applications) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **(COMMERCIAL DIVISION)** **HELD AT MASERU CCA/0048/2024** **In the matter between:** **ROAD FUND SECRETARIAT APPLICANT** **AND** **BAFANI CONSTRUCTION (PTY) LTD 1 ST RESPONDENT** **OFFICER COMMANDING MASERU** **CENTRAL CHARGE OFFICE 2 ND RESPONDENT** **COMMISSIONER OF POLICE 3 RD RESPONDENT** **ATTORNEY GENERAL 4 TH RESPONDENT** **_Neutral Citation:_** Road Fund Secretariat v Bafani Construction (Pty) Ltd & 3 Others [2025] LSHC 245 Comm. (18 SEPTEMBER 2025) **CORAM: MOKHESI J** **HEARD: 26 AUGUST 2025** **DELIVERED: 18 SEPTEMBER 2025** **_SUMMARY_** **CIVIL PRACRICE AND PROCEDURE:**_Application for contempt of court against the respondent for refusal to refer a dispute between the parties to arbitration in terms of their agreement- The correct procedure to be followed to have the company and its directors held liable for contempt of court- The applicants only suing the company and in the notice of motion seeking to hold unnamed and uncited company’s director to be held liable for contempt – Held, the applicant should have joined the errant director and sought him/her to be held in contempt with the factual foundation of his contemptuous conduct being laid out because contempt of court is a criminal offence which requires the alleged contemnor’s conduct to satisfy the offence’s definition of proscription - In the result, only the company found to be liable for contempt and given a fine in the alternative if the court order continues to be disobeyed within a specified time._ **_ANNOTATIONS_** **Cases** **Lesotho** _Commander Lesotho Defence Force & Another v Sekoati LAC (2007-2008) 308_ _Lesotho Revenue Authority and Others v Olympic Off Sales (C of A (CIV) 13 of 2006)[[2006] LSCA 17](/akn/ls/judgment/lsca/2006/17) (20 October 2006)_ **South Africa** _Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)_ _Matjhabeng Local Municipality v ESKOM Holdings Limited (Case No. 924/13) [2015] ZAFHC (19 February 2015)_ _Plastic Converters Association of SA on behalf of Members v National Union of Metalworkers of SA (2016) 37 ILJ 2015 (LAC)_ _Samancor Chrome Limited v Bila Civil Contractors (Pty) Ltd and Others (159/2021)[[2022] ZASCA 154](/akn/za/judgment/zasca/2022/154)_ _R v Keyser 1951(1) SA 512(A)_ _S v Abrahams 1983 (1) SA 137(A)_ _Twentieth Century Fox Corporation and Others v Playboy Films (Pty) Ltd and Another 1978 (3) SA 202 (W)_ **_JUDGMENT_** [1] **Introduction** This case implicates a proper procedure to be followed to have the company and its directors to be held liable for contempt of court. This is an application for contempt of court which was filed on an urgent basis seeking the following reliefs: _“1. The rules of this Honourable Court may not be dispensed with on account of urgency of this matter;_ _2\. A rule nisi shall not be issued and made returnable on a date to be determined by this Honourable Court asking the Respondents to show cause if any why the following reliefs may not be made final;_ 1. _The 1 st Respondent may not purge its contempt by referring its dispute with the Applicant to arbitration as directed by this Honourable Court within three days or by abandoning its claim against the Applicant and leaving/vacating the construction site;_ 2. _Upon failure to purge their contempt The Director of the Applicant be committed to gaol for a period to be decided by this Honourable Court._ _3\. Prayers 1, 2(a) and (b) operate with immediate effect as interim reliefs;_ _4\. Any further and or alternative relief this Honourable Court may deem fit._ _5\. Costs on attorney and client scale in the event of opposition hereof.”_ [2] **Background facts** The court did not consider the matter urgent and was set down to the 26 August 2025 for hearing. Litigation involving these parties has been through this court and the Court of Appeal and it does not seem to be coming to an end anytime soon. The judgement of the Court of Appeal was handed down during its session of May 2025. The applicant had embarked on a construction project aimed at upgrading tolling infrastructure at Maseru Bridge. The 1st respondent was awarded the tender for this purpose. Disputes arose between the parties regarding non-completion of the works on time, resulting in the applicant terminating the contract. Despite termination of the contract, the 1st respondent remained onsite and restricted the staff of the applicant from accessing the site as part of it houses communication server of the tolling facility at Maseru Bridge. The applicant forcefully, through the assistance of the police, evicted the applicants from site. The latter instituted spoliation proceedings and was successful. The spoliation application was adjudicated together with the main application which had been lodged earlier. [3] In the main application, the applicant principally sought an order for specific performance against the 1st Respondent to refer a dispute to arbitration in terms of clause 40 of their agreement which provides that: _“40.1 Should any disagreement arise between the employer, including his principal agent or agents, and the contractor arising out of or concerning this agreement or its termination, either party may give notice to the other to resolve such disagreement._ _40.2 Where such disagreement is not resolved within ten (10) working days of receipt of such notice it shall be deemed to a dispute and shall be referred by the party which gave notice to either –_ _40.2.1 Adjudication [40.3] where the adjudication shall be conducted in terms of the edition of the JBCC Rules for adjudication current at the time when the dispute was declared, or_ _40.2.2 Arbitration [40.4] where the arbitrator is to be appointed by the body selected by the parties [41.3] whose rules shall apply …”_ [4] In terms of this agreement the 1st respondent had declared a dispute but was not referring it to arbitration as stipulated in the agreement prompting the applicant to seek an order for specific performance which was successful before this court. In the meantime, the 1st respondent being dissatisfied with the orders of this court launched an appeal to the Court of Appeal. The appeal was dismissed in May 2025, in essence affirming the order which I made that the 1st respondent should refer a dispute to arbitration per the agreement within (10) days of the order. [5] Despite being unsuccessful in the Court of Appeal, the 1st respondent has still not referred the dispute to arbitration as ordered by this court prompting the applicant to launch the current proceedings. At the hearing of the matter, I questioned the applicant’s counsel, Advocate Kalake, on the propriety of seeking punitive measure against unspecified director of the applicant without first joining such a direction and serving him or her with contempt papers. He was, however, adamant that there was no need to cite the 1st respondent’s directors in this matter. He seemed to be of the view that Mr Ntaote who had always deposed to 1st respondent’s answering affidavits should be held responsible. It should, however, be stated that the said Ntaote deposed to answering affidavits as the General Manager having been authorised by the board. I then invited counsel to file supplementary heads of argument dealing with the authorities which supports the procedure the applicant has adopted in these proceedings. Supplementary heads of arguments were duly filed only by the applicant’s counsel. In the heads of arguments, applicant’s counsel persists with his stance that he has done nothing procedurally wrong by not citing the director who allegedly committed contempt of court. [6] **Respective Parties’ cases** Applicant’s contention is simply that despite being ordered, the 1st respondent has not referred the dispute it had declared to arbitration and further seeks punitive measures to be meted out on the 1st respondent and its uncited director – I come to this issue in due course. The 1st respondent’s case rests on two pillars, namely, poverty and unparticularized enquiry at the Secretariat of Arbitration Federation of South Africa based in Johannesburg regarding the process to be followed for referral and the fees to be paid. This is how these issues were pleaded in paragraphs 12-14 of its answering affidavit: _“12. Following the judgment of the honourable court, the respondent made efforts to seek to refer the matter for arbitration. In that regard the respondent communicated with the Secretariat of Arbitration Federation of South Africa based in Johannesburg with a view of seeking to understand the processes that must be followed. It became clear that those processes would not be completed within a period of ten (10) days._ _13\. The Secretariat indicated that an arbitrator has to be nominated and agreed to by the parties. The arbitrator would then have to spell out an agreement in terms of which the arbitration would be conducted. The respondent enquired about the fees that would be payable to the arbitrators. The Secretariat quoted an estimated fee of between M40,000.00 to M100,000.00 per day depending on the level of counsel to be engaged as an arbitrator._ _14\. It is important to point out that the respondent would also have to pay its legal representative a daily fee. It became clear that the respondent would have to fork out substantial amounts of money. In the meantime, the management of the respondent considered its options including the option of appealing the judgment of the honourable court.”_ [7] It must be stated that as at the time of hearing this matter the 1st respondent has not referred their dispute to arbitration and has not sought to explain what it has always been doing since the judgment of this Court and of the Court of Appeal. It could have done this through seeking leave to file supplementary affidavit, but as it turned out it was content to argue the matter based only on the above-quoted defences. I turn to deal with the law on contempt of court and the propriety of not joining the 1st respondent’s directors whose conduct the applicant alleges caused the company to disobey this court’s order. [8] **The Law of Contempt of Court** **** The law on this issue is trite. The requirements which must be fulfilled are (a) the existence of a court order; (b) service or notice of that order to the respondent; (c) non-compliance with the court order by the respondent, and (d) wilfulness and _mala fides_. The law requires the applicant to prove all these requirements beyond a reasonable doubt. If the applicant succeeds in proving the existence of the order, its service or notice and non-compliance with it, then the respondent bears the evidentiary burden in relation to wilfulness and _mala fides._ And if the respondent fails to adduce evidence which will create a reasonable doubt that there was wilfulness and _mala fides_ , the applicant will have succeeded in proving contempt of court beyond a reasonable doubt (**Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)** at para. 42). [9] The test for contempt was stated in **_Fakie NO_ **case (above) thus, at paras. 9-10: _“The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide.’ A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself to act in the was 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)._ _10\. These requirements – that the refusal to obey should be both wilful and mala 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 evidences. Honest belief that non-compliance is justified or proper is incompatible with that intent.”_ [10] Furthermore, the 1st respondent contends that nothing stopped the applicant from referring the dispute itself if it feels that the 1st respondent is not doing it, and this is averred in paragraph 25 of its answering affidavit: _“25. Contents herein are noted except that it is denied that the first respondent declared a dispute. It is not correct that the party who declares a dispute should be a referring party. A reading of clause 40 of the agreement between the parties allows either party, in the event that there is a dispute, to refer such dispute for arbitration, the referral is a joint exercise between the two (2) parties…”_ [11] Evidently, when one has regard to these excepts from the 1st respondent’s answering affidavit three things becomes clear: the 1st respondent does not acknowledge or have regard to the judgment of this court which made it clear that it had declared a dispute and should refer it to arbitration in terms of clause 40.2 of the parties’ agreement. It is in essence putting into question the very essence of the order of this court which brought us here. Secondly, it is pleading poverty. As far as I am aware there is no rule of our law which says a _pacta sunt servanda_ can be undermined by the supposed poverty of the party to the agreement, or even worse, such be advanced as an excuse for disobeying court orders. It is not clear what the 1st respondent’s financial position is for it to be crying poverty as the reason for non-compliance with this court’s order. These arguments were advanced in December 2024, and the matter went on appeal where it lost in May 2025 as already said earlier in this judgment. Since this decision of the Court of Appeal the 1st respondent has not done anything to comply with the order of this court because if it did it would have been easy for it to seek leave to file supplementary affidavit to bring that fact to the attention of this court. It appears to me that the 1st respondent is content to sit on its laurels and not comply with this court’s order. [12] The 1st respondent’s inaction and its justification for non-compliance is extremely unreasonable. This unreasonableness in my judgment is symptomatic of lack of good faith on its part. It is not acting _bona fide_ because this court has already held that it must refer a dispute it declared to arbitration, but it is insistent even in the face of the order of this court that it did not declare a dispute. The 1st respondent is displaying a repugnant attitude towards the order of this court. My order provided a period of ten days within which referral should be made but this does not seem to bother it. It argues that ten days is unrealistic to refer the dispute to arbitration, but it has not come back to court to seek its indulgence to extent this period, only waiting for contempt proceedings to be launched to raise it as some sort of a defence for non-compliance. [13] As one of the mitigating factors the 1st respondent, apart from crying poverty – though unsubstantiated – says after making enquiries with the Secretariat of Arbitration Federation it sought legal advice which was interrupted by the institution of these proceedings as its current legal counsel was still working on it. The 1st respondent has not sought, at the risk of being repetitious, leave to file further affidavit to deal with the said legal advice in detail for this court to determine that it acted _bona fide_ in non-complying with this court’s order. In **S v Abrahams 1983 (1) SA 137(A)** 146 F-H the court stated that: _“[I]f an accused wished the Court to have regard to this advice as a mitigating factor, then it could be expected of him to produce the advice if it was in writing. In addition the court would require to be satisfied that the advice was given on a full and true statement of the facts. In the absence of such safeguards the fact of the advice having been given was held to be of no avail as a mitigating factor. These remarks are pertinent to the present enquiry, more particularly as the attorney on whose advice the appellant claimed to have relied was not called to testify in regard to all the circumstances relevant to the giving of such advice.”_(See also **Samancor Chrome Limited v Bila Civil Contractors (Pty) Ltd and Others (159/2021) [2022] ZASCA 154** (7 November 2022) at paras. 53-54). With this discussion I have demonstrated that the applicant fulfilled the requisites of contempt of court against the 1st respondent. I turn to deal with the procedure for hauling the companies’ directors for contempt of court before the courts. [14] It is trite that companies act through their officials and directors. It is the responsibility of the board of directors to ensure that court orders are obeyed. In **_Samancor Chrome Limited_ **case****(above at para.13) at para.66**** the court made the following apposite remarks about company directors who were facing a contempt of court charge: _“This claim cannot shield the third to fifth respondents from responsibility. Even if they had given the second respondent powers to make decisions in operational matters, a court order is a serious matter requiring the board’s attention. The third to fifth respondents had a duty to ensure that once they received the court order stating that Bila acted unlawfully, that order was obeyed. They could not simply wash their hands and walk away from accountability. Moreover, they have not explained what steps they had taken to ensure that the court order was complied with. Consequently, all directors must be held responsible jointly with Bila.”_ [15] **Procedural Issues** In **Twentieth Century Fox Corporation and Others v Playboy Films (Pty) Ltd and Another 1978 (3) SA 202 (W)** at p. 203 the court stated: _“A director of a company who, with knowledge of an order of court against the company, causes the company to disobey the order is himself guilty of a contempt of court. By his act or his omission such a director aids and abets the company to be in breach of the order of court against the company. If it were not so a court would have difficulty in ensuring that an order ad factum praestandum against a company is enforced by a punitive order…. An order ad factum praestandum against a company should also be served on its directors if a punitive order is to be sought against the directors in order to establish knowledge of the order of court.”_ [16] In the present matter the applicant seeks punitive relief against unnamed director of the applicant. I say unnamed because such a director is not cited as the respondent. Neither was he/she served with the application for contempt detailing that he/she is alleged to have done to undermine the authority and repute of this court. It should be re-stated that contempt proceedings are criminal proceedings of a peculiar kind, as Cameron JA in **Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)** at para. 8**** said: _“In the hands of a private party, the application for committal for contempt is a peculiar amalgam, for it is a civil proceeding that invokes a criminal sanction or its threat…:_ [17] Given that contempt is a criminal offence, proceedings for contempt against any alleged contemnor must comply with the prescripts of Section 12 of the Constitution on the right to a fair trial. All the procedural safeguards which are enumerated under this section must be ensured against any person who is tried for committing an offence, or for present purposes, is alleged to have committed contempt of court _ex facie curiae._ The procedure to be adopted in contempt _ex facie curiae_(while the court is not sitting) was aptly articulated in **R v Keyser 1951(1) SA 512(A)** at 518 E-H: _“[I]n every case of contempt ex facie curiae dealt with by our courts without a criminal trial, the proceedings were commenced by an order; served upon the offender containing particulars of the conducted alleged to constituted the contempt of court complained of, and calling upon the offender to appear before the court and to show cause why he should not be punished summarily for the alleged contempt of court. Sometimes the order has been issued on the application of the Attorney General, sometimes it has been issued by the court mero motu, but in every case it has informed the offender of the case he has to meet, and in every case it has allowed him sufficient time to consult counsel, to prepare his defence and to decide whether he will give evidence on oath or not.”_ [18] Something approximating what the applicants in the present case are urging this court to do, happened in **Matjhabeng Local Municipality v ESKOM Holdings Limited (Case No. 924/13) [2015] ZAFHC (19 February 2015).** In that case as in the present case contempt happened _ex facie curiae_ and was dealt by the High Court without a criminal trial. A rule _nisi_ was issued _ex parte_ against Municipal Manager to appear before court without having been joined or cited in his personal capacity. He was not given an opportunity to deal with the allegations against him. When he appeared before court unrepresented and not being aware that his imprisonment was sought, he was cross-examined by the court and Eskom’s counsel. At para 81, the constitutional court said: _“The procedure followed by the Free State High Court clearly deprived Mr Lepheana of the hallmarks of procedural fairness in terms of Section 35(3) of the Constitution. At the risk of repetition, he was arbitrarily deprived of his rights in terms of section 12(1)(a) of the Constitution. The circumstances in Matjhabeng did not warrant the summary procedure. This procedure may be invoked in exceptional circumstances, where there is a “pressing need for firm and swift measures to preserve the integrity of the judicial process.” This will be the case also where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable. But even then, and to the extent possible, the contemnor must be accorded his or her fair trial rights…”_ [19] What the applicant is urging this court to do is to summarily try an unnamed and uncited director of the 1st respondent without any factual basis being laid out pertaining to his or her conduct which is allegedly contemptuous. This is clearly unacceptable and will not be sanctioned by this court. [20] Given that only the company is guilty of contempt of court, the only punitive order this court can mete out is a fine **(Twentieth Century Fox Film Corporation** case (above) at p. 203:**** See**_Samancor Chrome Limited_** case above**).** [21] **Alternative relief – Its tenability.** The applicant has sought in the alternative to prayer 2(a), an order directing the 1st respondent to abandon its claim against the applicant and to leave the construction site. It should be recalled that the 1st respondent claims to be paid certain monies because it says it completed the works it contracted to do. The applicant contends otherwise. Further the 1st respondent is holding onto the construction site because it claims to be exercising a lien. Whether in terms of the agreement that is permissible is a matter to be determined at the arbitration. For the applicant to urge this court to order the 1st respondent to abandon its claim and leave the construction site is to cause this court to make an unenforceable order. I cannot make an order that a party abandon its claim and to leave construction on which it claims to be exercising a lien. This order is untenable. Whether it is correct to possess the construction site on the strength of a lien is an issue to be dealt with properly at the arbitration. The untenability of these orders is the reason I refuse to accede to the request to make them (**Lesotho Revenue Authority and Others v Olympic Off Sales (C of A (CIV) 13 of 2006)[[2006] LSCA 17](/akn/ls/judgment/lsca/2006/17) (20 October 2006) **at para.19). [22] **Costs** The applicant has sought punitive costs against the 1st respondent for non-compliance with this court’s order. Punitive costs order is made based on the special circumstances of each case (**Commander Lesotho Defence Force & Another v Sekoati LAC (2007-2008) **308 at 309-310). Punitive order of costs is awarded taking into account the conduct of the litigant where “it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.” (**Plastic Converters Association of SA on behalf of Members v National Union of Metalworkers of SA (2016) 37 ILJ 2015 (LAC)** at para. 46). [23] The 1st respondent has been deliberately refusing to obey the order of this court which seeks to force it to refer a dispute it has declared to arbitration, in terms of its contract. Despite issues of declaration of dispute and its referral having been dealt with in the main case, the 1st respondent seeks to relitigate it by raising it again in the present proceedings as it persists to argue that it did not declare a dispute. Furthermore, when faced with contempt proceedings it casually contends that the applicant can refer the dispute itself if it wishes to. This attitude is reprehensible and completely deserving of this court’s sanction in the form of a punitive costs order. [24] In the result the following order is made: 1. It is declared that the 1st respondent is in contempt of this court’s order which was issued on 07 November 2024. 2. The 1st respondent is ordered to purge its contempt within 10 days of this order, failing which it is ordered to pay a fine of M30,000.00 to the Registrar of this court within 30 days of its failure to comply with the first part of this order. 3. The 1st respondent is ordered to report to the Registrar of this court in writing detailing its compliance with the order of this court to purge its contempt at the end of 10 days mentioned in paragraph (b) above. 4. If the 1st respondent fails to purge its contempt in terms of (b) above, and payment of a fine is triggered, the 1st respondent is ordered to, within 5 days of making payment of the amount referred to in (b) above, to notify the Registrar of this court in writing of that fact. 5. In a case where 1st respondent it has to pay a fine and does not pay within the time stipulated in (b) above, the Registrar of this court is ordered to trigger civil debt recovery procedures of this court to recover the fine, in the form of attachment and execution of the 1st respondent’s assets, whether movable or immovable. 6. The 1st respondent is ordered to pay the costs of suit on attorney and client scale. **___________________________** **MOKHESI J** **For the Applicant: Advocate T. Kalake** **For the Respondent: Mr. Q. Letsika** **For the 2 nd to 4th Respondent: No Appearance** **** #### __Related documents ▲ To the top >