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Conditional Application For Leave To Appeal

The Nelson Mandela Foundation Trust is applying for conditional leave to appeal a judgment in the High Court of South Africa. They intend to apply directly to the Constitutional Court for leave to appeal, or alternatively to the Supreme Court of Appeal or Full Court. The Foundation argues the High Court erred in its judgment that found insufficient evidence the respondents committed contempt of court. Specifically, they argue the court applied the wrong legal test and failed to protect the dignity of the courts as required by the Constitution. If the Constitutional Court denies leave to appeal, the Foundation will apply to the higher courts.

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137 views4 pages

Conditional Application For Leave To Appeal

The Nelson Mandela Foundation Trust is applying for conditional leave to appeal a judgment in the High Court of South Africa. They intend to apply directly to the Constitutional Court for leave to appeal, or alternatively to the Supreme Court of Appeal or Full Court. The Foundation argues the High Court erred in its judgment that found insufficient evidence the respondents committed contempt of court. Specifically, they argue the court applied the wrong legal test and failed to protect the dignity of the courts as required by the Constitution. If the Constitutional Court denies leave to appeal, the Foundation will apply to the higher courts.

Uploaded by

Absa Abby
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO. EQ2/18

In the matter between:

NELSON MANDELA FOUNDATION TRUST Applicant

and

AFRIFORUM NPC First Respondent

ERNST ALEX ROETS Second Respondent

CONDITIONAL APPLICATION FOR LEAVE TO APPEAL

TAKE NOTICE that the applicant intends to apply to the Constitutional Court for leave

to appeal directly to that Court, in terms of section 167(6)(b) of the Constitution of the

Republic of South Africa, 1996, read with Rule 19 of the Constitutional Court’s Rules,

against the whole of the judgment and order delivered under this case number by the

Honourable Justice Lamont on 17 September 2019 (“Judgment and Order”).

TAKE NOTICE FURTHER that, on condition that the Constitutional Court dismisses

such application for leave to appeal directly, the applicant intends to apply to this Court

in terms of Section 17 of the Superior Courts Act 10 of 2013, on a date to be arranged

with the Registrar, for leave to appeal against the Judgment and Order to the Supreme

Court of Appeal, alternatively to the Full Court of this Court.

TAKE NOTICE FURTHER that the applicants contends that there are reasonable

prospects that another court would come to a different conclusion, or alternatively

there are compelling reasons why the Supreme Court of Appeal should hear the
appeal. These compelling reasons include whether or not the test for contempt is not

concerned with conduct which impugns the integrity of the court, and whether or not

on the facts, the conduct of Mr Ernst Roets impugned the integrity of the courts in

breach of section 165 of the Constitution.

TAKE NOTICE FURTHER that this conditional application for leave to appeal is based

on the following grounds:

1. The Court erred in holding (at para 4 of the Judgment) that, in order for contempt

of court to be committed, “[t]here must be a court order in existence requiring the

alleged contemnor to do or not do something (ad factum praestandum)”, and in

failing to consider that contempt of court consists in “the commission of any act

or statement that displays disrespect for the authority of the court” (per Pheko

and Others v Ekurhuleni Metropolitan Municipality (No 2) 2015 (5) SA 600 (CC)

at para 28), or in “violating the dignity, repute or authority of the court” (per Fakie

NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 6, and Department

of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at para 186).

2. The Court erred in failing to hold that contempt of court may be committed even

by a person who is directly not bound by an injunction but who has been “setting

the Court at defiance, and deliberately treating the order of the Court as unworthy

of notice” (per Cape Times v Union Trades Directories and Others [1956] 1 All

SA 124 (N) at 134).

3. The Court failed to interpret and apply the common law in line with the

Constitution especially section 1(c) and section 165 to afford an appropriate

degree of protection to the “dignity, accessibility and effectiveness of the courts”.

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4. The Court erred in finding (at para 11 of the Judgment) that “there is insufficient

evidence to establish that the first respondent authorised the second respondent

to act on its behalf. There is no evidence that he in fact acted on its behalf.” The

Court should have found that the second respondent’s denial of having so acted

was clearly untenable and/or palpably implausible (per National Director of Public

Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 26).

5. The Court erred in holding (at para 24 of the Judgment) that it is “undesirable” to

issue a rule nisi “on a prima facie basis” requiring the respondents to show cause

on a return date why they should not be declared in contempt of court.

6. The Court should have found that the applicant had presented prima facie proof

that the respondents had committed contempt of court, sufficient to find that they

had a case to answer, and should consequently have issued a rule nisi to enable

that case to be answered appropriately.

SIGNED AT JOHANNEBSURG ON 17 SEPTEMBER 2019

_________________________________
RUPERT CANDY ATTORNEYS INC
Applicant’s Attorneys
Block 4, Rivonia Office Park
150 Rivonia Road, Sandton
Tel: 010 035 0867
Email: [email protected]
Ref: R Candy/km/N0001

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TO:
THE REGISTRAR
High Court of South Africa
Gauteng Local Division
JOHANNESBURG

AND TO:
HURTER SPIES INC SERVICE BY EMAIL PER AGREEMENT
Respondents’ Attorneys
54 Union Avenue, Kloofsig, Centurion
Email: [email protected];
[email protected]

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