Fleming v Alphapacks Holdings (Pty) Ltd and Others (Leave to Appeal) (2025/182290) [2025] ZAGPJHC 1219 (21 November 2025)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1219 | Noteup | LawCite sino index ## Fleming v Alphapacks Holdings (Pty) Ltd and Others (Leave to Appeal) (2025/182290) [2025] ZAGPJHC 1219 (21 November 2025) Fleming v Alphapacks Holdings (Pty) Ltd and Others (Leave to Appeal) (2025/182290) [2025] ZAGPJHC 1219 (21 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1219.html sino date 21 November 2025 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, JOHANNESBURG) CASE NO: 2025/182290 (1)  REPORTABLE:  NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED. In the matter between:- COLIN FLEMING Applicant and ALPHAPACKS HOLDINGS (PTY) LTD First Respondent CHAD BRENDON CREW Second Respondent LYLE MARK HACK Third Respondent PIETER VERMAAK Fourth Respondent PEV SMITH INCORPORATED Fifth Respondent JUDGMENT (LEAVE TO APPEAL) ALLEN AJ INTRODUCTION [1] This is an application for leave to appeal of a contempt of court order granted in the urgent court on 16 October 2025. There was no appearance for the applicant and the following order was granted unopposed: “ 1.        The ordinary forms and service provided for the Rules, are dispensed with and the matter is heard as one of Urgency in terms of Rule 6(12) of the Uniform Rules of Court. 2.         The Respondent is declared to be in contempt of the Court Order granted by the Honourable Justice Mfenyana J on 08 October 2025. 3.         The Respondent is interdicted from again in future, defaming, harassing and/ or conducting himself in any manner, as precluded in the Court order granted by the Honourable Justice Mfenyana J on 08 October 2025. 4.         The Respondent is committed to imprisonment for Contempt of Court for a period of 30 (thirty) days or in the alternative , to pay a fine being in the amount of R250 000 – 00 (Two Hundred and Fifty Thousand Rand). 5.         In the event that the Respondent contravenes, in future, the Court Order granted by the Honourable Justice Mfenyana J on 08 October 2025, or this Order, then the Respondent shall be automatically committed alternatively, fined in terms of paragraph 4 above. 6.         The Respondent’s counter-application for rescission, varying, judicial review and/ or staying of execution of the Order granted by the Honourable Justice Mfenyana J on 08 October 2025, is dismissed with the Respondent to pay the Applicants’ costs on an attorney and client scale, inclusive of the cost of Counsel. 7.         The Respondent is ordered to pay costs of this application on the scale as between attorney and client, including costs of Counsel, so that the Applicants are not out of pocket at all.” [2] On 20 October 2025 I received the application for leave to appeal and heads of argument. I was further advised that the applicant’s annexures were not annexed as same consisted of over a thousand pages. [3] During the contempt hearing I was advised that respondents received approximately twenty emails from applicant in the morning, confirming applicant’s persistence to act in contempt. I was also referred to the fact that the papers filed by applicant regarding the stay of proceedings was predicated on the complaint lodged with the Legal Practice Council and was it brought to my attention that only the fourth and fifth respondents could have been affected by the complaint whereas first, second and third respondents were not affected and should the application in any event proceed on their behalf. BACKGROUND [4] On 8 October 2025 an urgent application was heard in this court wherein certain interdictory relief was granted against applicant. [5] Applicant filed opposing papers, but on the day did not attend court. [6] Applicant did not adhere to this court order and on 16 October 2025 the contempt of court application was heard by me. Applicant again filed opposing papers as well as an application for rescission/review to be heard simultaneously with the contempt of court application against the order of 8 October 2025. Applicant similarly elected not to attend the court proceedings. [7] Applicant hereafter brought an application for leave to appeal with a Part A and a Part B. The Part A was the leave to appeal application against the 8 October 2025 order and the Part B was against my order. [8] On 23 October 2025 it was directed that the hearing of the leave to appeal in respect of Part A shall be enrolled prior to the hearing of the leave to appeal of my order. The separate application in terms of Rule 45A shall not be dealt with by either Judges and may be enrolled in the urgent court in accordance with the applicable rules and practice directives of this division. [9] Applicant also indicated that he was in the process of appointing an attorney of record and in the directive, applicant was given until 31 October 2025 to do so. Attorneys of record were not appointed. Part A was heard on 5 November 2025 and the Honourable Madam Justice Mfenyana J granted the following order: “ 1.       The leave to appeal is dismissed. 2.         The applicant is ordered to pay the costs on attorney and client scale.” [10] The order underpinning the contempt is valid, binding and enforceable. [11] Applicant persisted to contravene this order even after the dismissal of the Part A application for leave to appeal. Applicant also did not prosecute this application and respondents acted accordingly. DISCUSSION [12] Applicant is self-represented and in the Part B application I erred on the following grounds: “1. Failure to prove willfulness beyond reasonable doubt. 2. The punitive sanction: Constitutional Infringement. 3.  Granting punitive costs”. [13] Applicant filed a further application for leave to appeal one day before the hearing wherein I erred, alternatively misdirected myself, on the following grounds: “1. Error on the law of contempt. 2. Error on the abuse of process. 3. Error regarding procedural fairness and obstruction of justice. 4. Error regarding sub judice matter”. [14] The parties’ heads of argument were not received by me as per my directive prior to the hearing of this matter and were uploaded on Caselines without alerting me thereto either. [15] Applicant filed further heads of argument with the following grounds: “1. Procedural unfairness. 2. Prejudice to an unrepresented litigant. 3. Incomplete record and ignored correct application. 4. Factual impossibility of full compliance. 5. Lawfulness of communications. 6. Abuse of process by respondents. 7. The underlying order is unreliable, unjust and under appeal. 8. Disproportionate and unconstitutional sanction”. [16] At the hearing I was unable to establish which application is relied upon and should be considered. Applicant argued on the grounds in Part B but, for the sake of completeness, I will address all the points raised in both applications. [17] Applicant also requested to play a recording of his argument due to his ADHD and Epilepsy. Applicant was unable to submit proof of his medical conditions. Respondents did not oppose. [18] Applicant conceded and retracted the point that on 16 October 2025 he requested a postponement to seek legal representation and which postponement I refused. Applicant elected not to attend court on the day. [19] Applicant also argued that the foundation of the original order was flawed whilst the application before me was for another order of contempt thereafter granted. [20] Applicant indicated in writing that he will not comply with the court’s orders. Applicant further uploaded documents during the night preceding this hearing of approximately another thousand pages. In these documents applicant’s persistence to act in contempt is again confirmed notwithstanding the fact that applicant was taken through the order on 5 November 2025. [21] Applicant, during argument, also undertook to “comply 100% with the order from now on” which underscores applicant’s persistence to act in contempt with the order granted. [22] Predicated on the aforementioned there was willfulness beyond reasonable doubt by applicant not to adhere to the court order and was there no error on the law of contempt. There was no abuse of process as applicant admittedly persisted in his actions not to comply with the order of court which order should be respected, enforced and upheld. There was no procedural unfairness or obstruction of justice as applicant elected not to attend the court proceedings and not to comply with the court’s orders. [23] Applicant’s point of a sub judice matter does not hold water either as the 8 October 2025 order followed after the matter relied on and the Part A application for leave to appeal that order was unsuccessful. My order of contempt on 16 October 2025 was therefore correctly granted. [24] The factual matrix of this matter and the punitive sanction of 30 days imprisonment alternatively a R 250 000.00 fine needs closer scrutiny as to whether it amounts to constitutional infringement. [25] The points raised by the applicant are the grounds applicant relies on for reasonable prospects of success or compelling reasons why the appeal should be heard. The test [26] The traditional test in deciding whether leave to appeal should be granted was whether there is a reasonable prospect that another court may come to a different conclusion to that reached by me in my judgment. This approach has now been codified in the Superior Courts Act. [27] In terms of Section 17 of the Superior Courts Act, 10 of 2013: “ (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that- (a)        (i) the appeal would have a reasonable prospect success; or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; (b)        …. “ [28] The word “would” in Section 17(1)(a)(i) of the Superior Courts Act, 10 of 2013 , was discussed in the matter of Mont Chevaux Trust v Tina Goosen & 18 Others [1] as per Bertelsman J, held as follows: “ It is clear that the threshold for granting leave to appeal against the judgement of a high court has been raised in the new Act. …The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against .” [2] [29] The learned judge in the Mont Chevaux Trust matter, supra, indicated that the word “would” should include and been interpreted as a "measure of certainty” that another court could come to another conclusion. “Measure of certainty” should not be interpreted that another court will come to a different conclusion as a probability of success. [3] [30] The courts as far back as 2013 in the Mgezeni Gasbat Nxumalo v The National Bargaining Council for the Chemical Industry (NBCCI) and Others [4] summarized the approach one should follow in determining whether to allow an application for leave to appeal having due regard to the wording of Section 17(1)(a)(i) of the Superior Courts Act: “ [12 ]…[3] The traditional formulation of the test that is applicable in an application such as the present requires the court to determine whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgement that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in section 17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion.” [31] “ Reasonable prospect of success ” was discussed in the matter of MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) at para 17 : “An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.” [32] The statutory prerequisite derived from section 17(1)(a)(i) of the Superior Courts Act, is the prompt resolution of disputes where there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute of law which would allow another court to come to a different conclusion. [33] In Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March 2021) at para 10 the court expressed itself as follows on “reasonable prospects of success” as provided for in Section 17(1)(a) of the Superior Courts Act: “&hellip ;. The test of reasonable prospects of success postulates a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the appellants in this matter need to convince this court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects of success must be shown to exist”. [34] In the case of S v Smith 2012 (1) SACR 567 (15 March 2011) Plasket AJA (Cloete JA and Maya JA concurring) held as follows at para 7: “What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal”. [35] I agree that there must be sound, rational, and compelling reasons that there are prospects of success on appeal before leave to appeal can be granted. [36] In an unreported judgment in Notshokovu v S [5] at para 2 the SCA remarked that an appellant now faces a higher and a more stringent threshold, in terms of the Superior Courts Act 10 of 2013 compared to that under the provisions of the repealed Supreme Court Act 59 of 1959. [37] In the case of Wilson v Wilson (6669/08) [2009] ZAFSHC 2 (16 January 2009) it was said:” [10] A cursory overview of the law appears to be necessary. An applicant who seeks an order for the committal of a respondent for contempt of order must show the following: that an order was granted against the respondent; that the respondent was either served with the order or informed of such an order against him and can have no reasonable grounds for disbelieving that information and that the respondent has either disobeyed the order or neglected to comply with it. See Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa , 4 th Edition at p. 818. The standard of proof required to sustain committal for civil contempt is to prove all the elements thereof beyond reasonable doubt. See UNCEDO TAXI SERVICE ASSOCIATION v MANINJWA AND OTHERS 1998 (3) SA 417 (ECD) at 429 G-I” and “ [15] In cases of this nature, a respondent who can advance credible evidence which established that he did not deliberately disobey the court order; that his non-compliance was due to genuine lack of means on the grounds of poverty would have shown that his conduct was bona fide . The respondent’s version must create some reasonable doubt as regards the alleged wilful default and mala fides attributed to the respondent by the applicant. The respondent would not be held in contempt of court in such circumstances - DEZIUS v DEZIUS 2006 (6) SA 395 (CPD) .” [38] In FAKIE NO v CCII SYSTEMS (PTY) LTD (653/04) [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA) (31 March 2006) it was said:”[23] It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused's state of mind or motive: Once the three requisites mentioned have been proved, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that establishes a reasonable doubt”. “ [42] To sum up: 1.     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. 2.     The respondent in such proceedings is not an accused person, but is entitled to analogous protections as are appropriate to motion proceedings. 3.     In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt. 4.     But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt. 5.     A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities”. [39] The applicant was served with the papers. The order with an explanatory letter was forwarded to applicant thereafter. In the Part A leave to appeal application it was again explained to applicant. Applicant in writing proffered not to adhere to this court’s orders. Applicant elected not to attend the court proceedings. Applicant persisted to act in contravention of the 8 October 2025 order and even after the contempt order was granted, he continued unabatedly. His undertaking during argument to “100% comply from now on” confirmed his mala fide actions and wilfulness which was established beyond reasonable doubt. [6] [40] In the case of 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 (CCT 52/21) [2021] ZACC 18 ; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) it was said:” [ 47] I should start by explaining how the purposes of contempt of court proceedings should be understood. As helpfully set out by the minority in Fakie , there is a distinction between coercive and punitive orders, which differences are “marked and important”. A coercive order gives the respondent the opportunity to avoid imprisonment by complying with the original order and desisting from the offensive conduct. Such an order is made primarily to ensure the effectiveness of the original order by bringing about compliance. A final characteristic is that it only incidentally vindicates the authority of the court that has been disobeyed. Conversely, the following are the characteristics of a punitive order: a sentence of imprisonment cannot be avoided by any action on the part of the respondent to comply with the original order; the sentence is unsuspended; it is related both to the seriousness of the default and the contumacy of the respondent; and the order is influenced by the need to assert the authority and dignity of the court, to set an example for others .” (Emphasis added) “ [48] A coercive order would be both futile and inappropriate in these circumstances. Coercive committal, through a suspended sentence, uses the threat of imprisonment to compel compliance. Yet, it is incontrovertible that Mr Zuma has no intention of attending the Commission, having repeatedly reiterated that he would rather be committed to imprisonment than co-operate with the Commission or comply with the order of this Court. Accordingly, a suspended sentence, being a coercive order, would yield nothing. In CCT 295/20 , this Court was at pains to point out how Mr Zuma had been afforded, perhaps too generously at times, ample opportunities to submit to the authority of the Commission. Notwithstanding that I recognise the importance of the work of the Commission, being guided by what this Court said in CCT 295/20 , I do not think this Court should be so naïve as to hope for his compliance with that order. Indeed, it defies logic to believe that a suspended sentence, which affords Mr Zuma the option to attend, would have any effect other than to prolong his defiance and to signal dangerously that impunity is to be enjoyed by those who defy court orders.” (Emphasis added) “ [68] Therefore, although a contemnor is not an accused person as envisaged by section 35, the fair procedure required by section 12 may, depending on the circumstances, necessitate a process that is akin to that afforded by section 35. I have already noted that section 35(3) affords an accused person a residual fair trial right to say something in mitigation of sentence. Taking away the liberty of an individual is a drastic step. Affording her or him an opportunity to say something in mitigation of sentence, as is the case under the residual fair trial right, is the least that a court can do before taking that drastic step. Especially since the principle that a person ought to be afforded an opportunity to be heard in matters where their rights or interests are affected permeates our law regarding fair procedure. Indeed, it is even considered unfair to take administrative action against an individual without affording her or him an opportunity to make representations. [7] It must then follow that it is untenable to impose a criminal sentence on a person without affording her or him an opportunity to say something on an appropriate sanction. After all, a criminal sanction has the potential of so serious a consequence as depriving an individual of their constitutional right to freedom”. [41] In the instant matter the authority and dignity of the court was wilfully undermined by the applicant. A suspended sentence would not have had any effect other than to allow applicant to prolong his defiance as per his undertaking. Applicant was aware of the contempt proceedings and possible sanctions if granted, but elected not to attend court to make representations and say something in mitigation. He, on the contrary, persisted to act in contempt even to the day of this Part B application. I was not approached for any postponement or ways to accommodate applicant and was met with total silence on the date of hearing. CONCLUSION [42] From a helicopter point of view it is not in the interests of justice that leave to appeal should be granted. I am not persuaded that the issues raised by the applicant in this application for leave to appeal are issues in respect of which another court is likely to reach conclusions different to those reached by me. I am therefore of the view that there are not reasonable prospects of another court making factual findings and coming to legal conclusions at variance with my factual findings and legal conclusions. The appeal, therefore, does not have reasonable prospects of success and leave should not be granted. COSTS [43] The last point is that I erred in the granting of punitive costs. It is common cause that three attorney and client cost orders were granted against applicant prior to this application. [44] The general principle regarding the award of costs is well-settled: it is entirely a matter for the discretion of the court which is to be exercised judicially upon a consideration of the facts of each case and in essence it is a matter of fairness to both sides. [8] [45] I granted costs on the attorney-and-client scale in my order predicated on applicant’s meritless opposing of the application to frustrate respondents, non-appearance by decision, persistence to act in contempt of the court’s order and a total disregard for court processes. [46] Costs are to follow the result and I am inclined to grant costs on the attorney-and-client scale predicated on the applicant’s actions, meritless opposing of the application, failure to prosecute this application and the late filing of a further application for leave to appeal to frustrate respondents. [9] ORDER [47] In the circumstances, the following order is made: 1.  The application for leave to appeal does not succeed and is dismissed. 2.  Applicant is to pay the costs of this application on an attorney-and-client scale. JP ALLEN AJ ACTING JUDGE OF THE HIGH COURT, GAUTENG DIVISION JOHANNESBURG This judgment was prepared by Acting Judge Allen. It is handed down electronically by circulation to the parties or their legal representatives by email, by uploading to the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The date for hand-down is deemed to be 21 November 2025. HEARD ON:                     17 November 2025 DECIDED ON:                 21 November 2025 For the Applicant:             Self-represented Instructed by: For the Respondents:       Adv JA Steyn Instructed by:                    Pev Smith Attorneys [1] Case No LCC14R/2014, dated 3 November 2014 at para [6] [2] Daantjie Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (75/2008) 2015 JDR 1534 (LCC) at para 3. Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016) at para 25 [3] Van Zyl v Steyn (83856/15) [2022] ZAGPPHC 302 (3 May 2022) at para 11 [4] JR1170/2013 [2016] ZALCJHB 212 (15 June 2016) [5] Notshokovu v S (157/2015) [2016] ZASCA 112 (7 September 2016). [6] See also Sheriff of The High Court: Giyani (Sydney Herbert Park, An Officer of Court) v Renky Thulani Makhubela (1270/2023) [2025] ZASCA 104 ; [2025] 4 All SA 72 (SCA) (15 July 2025). [7] See Walele v City of Cape Town [2008] ZACC 11 ; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) at paras 27-8. [8] Graham v Odendaal 1972 (2) SA 611 (A) on page 616 and Gelb v Hawkins 1960 (3) SA 687 (A) on page 694: “In seeking a basic principle to apply, I do not think it is necessary or desirable to say more than that the Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and that in essence it is a matter of fairness to both sides. The various decisions in the reports in regard to costs seem to me to be illustrations of this basic principle.” [9] Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) on page 318 it was said: “[223] More than 100 years ago, Innes CJ stated the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant. Since then this principle has been endorsed and applied in a long line of cases and remains applicable. Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court .”(Emphasis added) sino noindex make_database footer start