THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 810/21

In the matter between:
SAMANCOR CHROME LIMITED                                                APPELLANT
and
BILA CIVIL CONTRACTORS (PTY) LTD                       RESPONDENT

Neutral citation: Samancor Chrome Limited v Bila Civil Contractors (Pty)
Ltd
(Case
no
810/2021)
[2022] ZASCA
(28 November 2022)
Coram:
PETSE DP and ZONDI and MABINDLA-BOQWANA JJA and
DAFFUE and SALIE-HLOPHE AJJA
Heard:
30 August 2022
Delivered: 28 November 2022
Summary: Contempt of court – non-compliance with court orders to be
established beyond reasonable doubt – elements of wilfulness and mala fides
not established – appeal dismissed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Fourie J,
sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Mabindla-Boqwana JA (Petse DP and Zondi JA and Daffue and Salie-
Hlophe AJJA concurring)

[1] This appeal concerns the question whether the respondent, Bila Civil
Contractors (Pty) Ltd (Bila), is in contempt of two court orders granted by the
Gauteng Division of the High Court, Pretoria (high court), per Neukircher J
on 1 July 2019 and Janse van Niewenhuizen J on 10 December 2019
respectively. The appellant, Samancor Chrome Limited (Samancor), which
brought the contempt application before the high court, contended for that
question to be answered affirmatively. The high court disagreed with
Samancor in respect of both orders, albeit for different reasons, and dismissed
the application. It also dismissed the application for leave to appeal. This
appeal is therefore with the leave of this Court.

[2] Samancor is the co-owner and the holder of a converted mining right in
respect of the Remaining Extent Portion 2 of the farm, Elandskraal 469 JQ
(RE Portion 2). It has the sole and exclusive right to mine1 and recover chrome
in, on and under RE Portion 2, among other areas. It also has obligations to
safeguard and protect the environment, the area and persons using it, from
damage or injury. The Mine Health and Safety Act 29 of 1996 (the MHSA)
also imposes safety obligations on Samancor.

[3] Bila has a prospecting2 right for chrome ore over RE Portion 2. In terms
of this right, it is entitled to remove and dispose, for its benefit, chrome ore
and other minerals found during prospecting operations on RE Portion 2, as
contemplated in s 20 of the Mineral and Petroleum Resources Development
Act 28 of 2002 (the MPRDA).3 Bila is permitted to remove only authorised
quantities of chrome ore as may be required in order to conduct tests on it or
to identify or analyse it, as permitted in terms of s 20(2) of the MPRDA.

1 In terms of s 1 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) the term
‘mine’ when used as verb is defined as ‘any operation or activity incidental thereto, in, on or under the
relevant mining area’.
2 ‘prospecting’ – ‘means intentionally searching for any mineral by means of any method –
(a) which disturbs the surface or subsurface of the earth, including any portion of the earth that is under the
sea or under other water; or
(b) in or on any residue stockpile or residue deposit, in order to establish the existence of any mineral and to
determine the extent and economy value thereof; or
(c) in the sea or other water on land.’ (s 1 of the MPRDA)
3 Section 20 provides:
‘(1) Subject to subsection (2), the holder of a prospecting right may only remove and dispose for his or her
own account any mineral found by such holder in the course of prospecting operations conducted pursuant
to such prospecting right in such quantities as may be required to conduct tests on it or to identify or analyse
it.
(2) The holder of a prospecting right must obtain the Minister’s written permission to remove and dispose
for such holder’s own account of diamonds and bulk samples of any other minerals found by such holder in
the course of prospecting operations.’

[4] Bila’s prospecting right is for five years commencing on 13 May 2018
and ending on 29 May 2023. All planned prospecting activities were to be
conducted in three phases and within specific timeframes. Phase 1 would
consist of non-invasive prospecting activities, which included collation of
data and literature surveys. These activities would not disturb the land where
prospecting would take place. This phase was to last for a period of six
months, from June 2018 to December 2018.

[5] Phase 2 would last for a period of 12 months, from January 2019 to
December 2019. The activities planned for this phase would be invasive and
result in land disturbance, for example, sampling, drilling, trenching, and bulk
sampling. The proposed drilling programme consisted of six holes,
approximately 30m deep, depending on local depth to bedrock. The pits would
be 3m x 3m x+/- 10m deep on a grid of 100 x 100 metres and 50 x 50 metres
when necessary. These test pits had to be closed immediately before the
excavator moved to the next. It was envisaged that at least 100 test pits would
be excavated.

[6] Phase 3 would cover the remainder of the period from January 2020 to
29 May 2023. During this period, invasive prospecting activities such as
sampling, excavation, drilling, blasting, and bulk sampling would take place.
The prospecting area is described as 434 hectares, and it was anticipated that
a total of 50 000m³ (100 000 ton) would be tested by making trenches on
different locations over the whole prospecting area, where the possibility of
ore was identified with the test pits. Bila would be able to process 960m³ a
month and the processing of 50 000m³ would take about 42 months overall.

The total budget to complete the work for the duration of the prospecting right
was stated as R1 248 122.

[7] On 12 June 2019, Samancor lodged an urgent application in the high
court for an order interdicting Bila, its employees, and contractors from
conducting unlawful mining operations on RE Portion 2 (and Portion 154,
which is not relevant for this particular appeal). Samancor alleged that these
unlawful activities infringed upon its rights as a co-owner and the holder of
converted mining rights and posed health, safety, and environmental risks.

[8] In resisting Samancor’s application, Bila denied that it was conducting
unlawful mining activities. It alleged that it employed 85 people and had
invested in excess of R100 million in its authorised prospecting operations
and activities.

[9] The matter served before Neukircher J, who in her comprehensive
judgment, found in favour of Samancor on 1 July 2019. She granted, inter alia,
the following order:
‘1. In respect of the remaining extent of Portion 2 of the farm Elandskraal 469 JQ North
West Province:
1.1
[Bila], its employees and contractors are interdicted and restrained from
conducting, facilitating or being involved in any manner whatsoever in mining operations
on this property;
1.2
[Bila], its employees and contractors are interdicted and restrained from the
removal of any material containing chrome or chrome ore or other minerals from this
property outside of that allowed by its prospecting right.’

[10] Bila applied for leave to appeal against Neukircher J’s order, which was
dismissed on 12 August 2019. On 8 September 2019, Samancor lodged
another application in the high court for an order joining Bila’s directors as
respondents, and for Bila and its directors to be held in contempt of the order
granted by Neukircher J on 1 July 2019.

[11] In that application, Samancor alleged, inter alia, that various people
from Samancor – including its service specialist, Mr Vusumzi Vilakazi, its
mineral resources manager, Mr Kabelo Dube and an official from a security
company it employs, Mr Dolf Labuschagne – observed Bila conducting
mining activities on RE Portion 2 and Portion 154. Mr Vilakazi and Mr Dube
conducted an analysis of the pits where the alleged activities had taken place
and found that Bila had, by 22 August 2019, removed an estimated amount of
174 382.23 tons of chrome ore from MG4 Reef and 75 441.37 tons of chrome
ore from MG4A on RE Portion 2. The dimensions of the pits excavated were
in sizes that were more than those allowed in Bila’s Prospecting Work
Programme (PWP). Bila denied these allegations, while offering no evidence
to refute them, allegedly because of the urgency with which the application
had been brought.

[12] Samancor’s second application was heard by Van der Westhuizen J,
who dismissed it on 30 September 2019 on the basis that Samancor could not
obtain an order for contempt ‘summarily against the respondents [Bila’s
directors] without them being granted a need to be heard.’4 This Court granted

4 Relying on R v Keyser 1951 (1) SA 512 (A) at 518E-F endorsed in Matjhabeng Local Municipality v Eskom
Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited [2017] ZACC
35; 2018 (1) SA 1 (CC) para 79.

Samancor leave to appeal Van der Westhuizen J’s order after he had refused
leave.

[13] On 7 October 2019, Bila applied for leave to appeal Neukircher J’s
order to this Court, which was dismissed on 30 November 2019. Nearly eight
months later, on 22 July 2020, it applied for leave to appeal to the
Constitutional Court, which was dismissed on 13 November 2020.

[14] The dismissal of the application for leave to appeal by this Court on 30
November 2019, made Neukircher J’s order operative and enforceable until
22 July 2020, when an application for leave to appeal was lodged with the
Constitutional Court.

[15] On 13 July 2020, Samancor lodged another application, which is the
subject of this appeal, for an order holding Bila in contempt of the orders
granted by Neukircher J on 1 July 2019 and Janse van Niewenhuizen J on 10
December 2019, as mentioned earlier. Fourie J heard that application. Counsel
for Samancor submitted that the difference between the application that
served before Van der Westhuizen J in respect of Neukircher J’s order and the
one heard by Fourie J was the applicable contempt period.

[16] He contended that the application before Van der Westhuizen J dealt
with the contempt period between 12 August 2019, which is when Neukircher
J dismissed the application for leave to appeal, and 8 September 2019, when
the application before Van der Westhuizen J was brought. In contrast, the
matter heard by Fourie J, dealt with the period between the dismissal of the

petition by this Court on 30 November 2019 and the lodgement of the
application for leave to appeal to the Constitutional Court on 22 July 2020.

[17] As regards the facts relating to Janse van Niewenhuizen J’s order,
Samancor alleged that on 3 October 2019, it had lodged an internal appeal
with the Department of Environment, Forestry and Fisheries (the
Department)5 in terms of the National Environmental Management Act 107
of 1998 (NEMA) against the decision to grant Bila an environmental
authorisation, in respect of a prospecting right that had been granted to it over
RE Portion 2.

[18] In terms of s 43(7) of NEMA, an appeal suspends an environmental
authorisation, exemption, directive, or any other decision made in terms of
that Act or any other specific environmental management Act or any provision
or condition attached thereto. Samancor’s internal appeal accordingly
suspended any activities by Bila on RE Portion 2.

[19] According to Samancor, Bila continued to conduct mining and
prospecting activities on RE Portion 2 despite the lodgement of the internal
appeal. Because of this conduct, Samancor lodged an urgent application in the
high court seeking an order interdicting Bila from conducting any activities
on RE Portion 2 until the internal appeal had been determined. On 10
December 2019, Janse van Niewenhuizen J granted an order interdicting Bila
from being involved in any manner whatsoever, in any activities, including
prospecting operations on RE Portion 2, pending the outcome of the appeal.

5 Currently known as Department of Forestry, Fisheries and the Environment.

[20] On 13 December 2019, Bila applied for leave to appeal against Janse
van Niewenhuizen J’s order. This prompted Samancor’s attorneys to write a
letter to Bila’s attorneys on 19 December 2019 advising them that Janse van
Niewenhuizen J’s order was interlocutory and consequently did not have the
effect of a final judgment. Unfazed, Bila did not withdraw its application for
leave to appeal Janse van Niewenhuizen J’s order. It, however, never
prosecuted that application.

[21] In advancing a case of non-compliance with the Neukircher J and Janse
van Niewenhuizen J’s orders, Samancor alleged that on 10 June 2020, one Mr
Riaan Greeff, of a security company it employed, reported that he had noticed
Bila’s trucks operating on Bila’s prospecting area and RE Portion 2. On 11
June 2020, with a view to ascertaining the nature and extent of these activities,
Samancor’s finance and administration security specialist, Mr Nel, took aerial
photographs, from a drone, of the prospecting area and RE Portion 2.

[22] This was followed by a letter sent to Bila by Samancor’s attorneys on
15 June 2020, advising that Bila had again commenced with illegal mining
and prospecting operations in contempt of Janse van Niewenhuizen J and
Neukircher J’s orders. The letter demanded an immediate cessation of the
alleged illegal mining and prospecting operations failing which Samancor
would apply to court to hold Bila in contempt of the orders.

[23] On 25 and 26 June 2020, Mr Nel took aerial videos of the activities on
RE Portion 2. The video footage and photographs taken by Mr Nel were

studied by Mr Dube, Samancor’s mineral resources manager and qualified
mine surveyor. Mr Dube confirmed that the photographs and footage depicted
mining and/or prospecting operations.

[24] On 3 July 2020, Samancor employed the services of Directional Survey
and Mapping (DSM) to conduct a drone survey on RE Portion 2. DSM
processed the data and provided it to Samancor. Mr William Jele, Samancor’s
survey practitioner, analysed this data by using industry-standard digital
terrain modelling in surveying software, ‘model-maker’.

[25] As pointed out in the founding affidavit:
‘Mr Jele calculated that by 3 July 2020, [Bila] has mined additional volumes of chrome ore
of 258, 117 cubic metres from the MG4 Reef and 114, 211 cubic metres from MG4A Reef
on RE Portion 2. [Samancor’s chief surveyor, Mr Eddie Maleka] converted these volumes
to tons by multiplying the amount of the volumes with the density of the ore (being 4.04
tons per cubic metre for the MG4 Reef and 3.95 tons per cubic metre for the MG4A Reef).
This resulted in an additional 1,493,926 tons of chrome ore removed by [BILA] from the
MG4 Reef and MG4A Reef on RE Portion 2 i.e. in excess of the 920,611 tons of chrome
mined in 2019.’ (My emphasis.)

[26] Samancor submitted that Bila’s unlawful operations adversely affected
Samancor’s obligations imposed on it by the MHSA. Bila’s actions, it was
contended, also posed environmental, health and safety risks and placed the
integrity of the underground mined out area at risk.

[27] In its defence, Bila contended that the orders were not capable of being
breached, as they were not operational. Neukircher J’s order, so it contended,

was automatically suspended by virtue of the provisions of s 18(1) of the
Superior Courts Act 10 of 2013 (the Superior Courts Act) as the papers
seeking leave to appeal to the Constitutional Court had then been filed. In
respect of Janse van Niewenhuizen J’s order, Bila alleged that, although the
order was of an interim nature, it was final in effect and therefore its operation
was suspended upon the lodging of the application for leave to appeal against
it.

[28] Consequently, Fourie J was required to determine whether contempt
had been established on the papers. He found that Samancor’s application was
based on Bila’s conduct, which occurred after 10 June 2020. He held that
‘[t]he relevant period applicable for the order granted by Neukircher J [was]
therefore between 10 June 2020 (the effective date) and 22 July 2020 when
the application for leave to appeal to the Constitutional Court was filed.’ The
effective date was based on Samancor’s allegation that Mr Greeff had noticed
Bila’s trucks operating on the prospecting area on RE Portion 2 on 10 June
2020. He made the following key findings:
‘[40] Taking into account the period during which the order granted by Neukircher J is
operative for purposes of this application (between 10 June, the effective date, and 21 July
2020), the question to be considered is whether the respondent, by conducting these
activities, was conducting mining operations as opposed to prospecting activities, by
removing material or other minerals from this property “outside of that allowed by its
prospecting rights”.’
[41] The founding affidavit still refers to “unlawful mining and/or prospecting activities”,
even after Jele’s calculations. The explanation given in the founding affidavit “that by 3
July 2020 the respondent has mined additional volumes of chrome ore” in the quantities
as mentioned, also does not take the matter any further as it is not explained during what
period these quantities of material had been mined and/or removed outside of that allowed

in terms of the prospecting rights. Put differently, had it been illegally mined or was the
respondent conducting prospecting activities? Furthermore, had the material been removed
between 10 June (the effective date) and 3 July 2020 (when the calculation was apparently
made) or had the activities and removal already started prior to 10 June 2020? If the
activities had already started prior to 10 June 2020, what is the amount of material that was
removed after the effective date?’ (Emphasis in the original text.)

[29] Fourie J further noted the concession made in the replying affidavit that
Samancor became aware of these activities on 10 June 2020. For
completeness, the replying affidavit records that ‘[t]he difference between this
contempt application and the one before Van der Westhuizen J is that this
application is based on the [Bila’s] conduct after 10 June 2020, whereas the
application before Van der Westhuizen J was based on conduct up to 8
September 2019.’

[30] Fourie J accordingly found that ‘there [was] no sufficient evidence to
indicate, beyond reasonable doubt (or even on a balance of probabilities), that
[Bila] has disobeyed the order granted by Neukircher J by conducting mining
operations, as opposed to prospecting activities, and by removing material
outside of that allowed by its prospecting right during the period referred to
above.’

[31] As to the order granted by Janse van Niewenhuizen J, Fourie J found
that, that order which prohibited all activities, including prospecting
operations, was operational from when it was granted on 10 December 2019
and was not suspended by the application for leave to appeal. It was an
interlocutory order not having the effect of a final judgment, as contemplated

in s 18(2) of the Superior Courts Act. It was therefore effective and
enforceable also from 10 June 2020.

[32] He further found that, Bila had admitted that it was carrying out
prospecting activities even during the relevant period. The uncertainty about
the removal of the material outside of that allowed by the prospecting right
during the relevant period, while relevant, was of less importance when regard
is had to the terms of Janse van Niewenhuizen J’s order. He therefore
concluded that Bila had failed to comply with the order granted by Janse van
Niewenhuizen J.

[33] As to wilfulness and mala fides in respect of this order, Fourie J
accepted the explanation given by Bila that it had received legal advice to the
effect that the order was suspended and it could therefore continue with its
prospecting activities, which it bona fide accepted. In this regard, he was
satisfied that Bila had ‘advanced sufficient evidence to establish a reasonable
doubt (even on a balance of probabilities) as to whether the non-compliance
was wilful and mala fide, notwithstanding the fact that [Bila] was later found
to be wrong about the supposed suspension.’ He accordingly dismissed the
application with no order as to costs.

[34] Before us, counsel for Samancor submitted that Fourie J erred by
conceiving 10 June 2020 as the effective date on which the contempt
commenced. That date, counsel emphasised, was simply the date on which
Samancor became aware of Bila’s continued unlawful activities and not the
date from when non-compliance with the orders began. According to

Samancor’s counsel, Samancor had expressly stated in its replying affidavit
that the conduct for which it sought to hold Bila in contempt began from 30
November 2019 to 22 July 2020.

[35] Counsel expressed regret that Samancor had also stated in the replying
affidavit that the application was based on Bila’s conduct after 10 June 2020.
He emphasised that, despite that assertion, Samancor’s case, clearly showed
that Bila’s unlawful conduct, apparent from a holistic reading of its affidavits,
at the earliest, commenced from when this Court refused Bila’s application
for leave to appeal to when the application for leave to appeal was filed in the
Constitutional Court. That meant that Neukircher J’s order remained operative
until Bila’s belated filing of its application for leave to appeal to the
Constitutional Court.

[36] He further argued that Fourie J erred in finding that Samancor did not
present sufficient evidence to establish contravention of Neukircher J’s order
and further contended that the high court failed to analyse the evidence that
was presented before it.

[37] As to the finding that non-compliance with Janse van Niewenhuizen J’s
order was not proved to be wilful and mala fide, counsel for Samancor
submitted that Bila had been informed by Samancor’s attorneys on 19
December 2019 that the order was operative, and it had to adhere to it despite
its application for leave to appeal. Relying on S v Abrahams,6 Samancor
contended that Bila had failed to provide, in its answering affidavit, any details

6 S v Abrahams 1983 (1) SA 137 (A) at 146F-H.

of the advice it had allegedly received, including what the advice entailed,
when and by whom it was given.

[38] Bila readily conceded in its answering affidavit that both the
Neukircher J and Janse van Niewenhuizen J orders existed and were served
upon it. Consequently, the first two requirements to establish contempt were
met.

[39] The main defence in respect of these two orders was that they were not
breached because they were not operative. In my view, Fourie J was correct
in dismissing this defence because Janse van Niewenhuizen J’s order was
interlocutory in nature and therefore not suspended as s 18(2) of the Superior
Courts Act explicitly provides. Neukircher J’s order remained operative
during the period of 30 November 2019 and 22 July 2020, as already stated.
It was similarly not suspended during the period in which Samancor claims
the unlawful activities were taking place.

[40] I do not need to delve into the non-compliance with Janse van
Niewenhuizen J’s order as Bila admitted conducting prospecting operations,
which the order had interdicted. Fourie J was correct on this score, and Bila
mounted no challenge on appeal. In respect of that order, the issue that
remains to be determined is whether Bila advanced evidence that established
a reasonable doubt as to whether the breach was wilful and mala fide.

[41] I deal next with Neukircher J’s order. The first question is whether
Samancor established breach of that order beyond reasonable doubt.7 I am
willing to accept the argument made on Samancor’s behalf that on a proper
reading of the papers, 10 June 2020 was the date its ‘officials’ observed the
operations and the contempt complained of started on 30 November 2019 to
22 July 2020, despite the assertion made in its replying affidavit suggesting
otherwise.

[42] Therefore, the period that should be assessed as to whether Bila was
conducting mining operations in contempt of Neukircher J’s order is 30
November 2019 to 22 July 2020. It is important to carefully examine the
allegations relating to that period. This is so because a lot of background
precedes it and touches on the application brought for contempt of Neukircher
J’s order in relation to conduct from 12 August 2019 to 8 September 2019.

[43] In my assessment, there are two main paragraphs of the founding
affidavit that pointed to whether Samancor showed that Bila conducted
mining activities. Mr Greeff noticed Bila’s trucks operating on the site and
reported them. Mr Nel followed that up by taking photographs and making a
video of their activities. So far, the two witnesses’ observations on their own
were not vouching for whether mining or prospecting was taking place. The
person who could do that and indeed who studied the photos and the video
was Mr Dube, who was an expert in this regard. On scrutiny, the allegation
relating to what Mr Dube studied is not helpful either. It is, at best for

7 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 42.

Samancor, ambivalent. It is stated, he confirmed that ‘they show mining
and/or prospecting operations.’ (My emphasis.)

[44] The key allegation that remains is that which states that as at 3 July
2020 there was ‘. . . an additional 1,493,926 tons of chrome ore removed by
[Bila] from the MG4 Reef and the MG4A Reef on RE Portion 2 i.e. in excess
of the 920, 611 tons of chrome ore that it had already mined in 2019.’

[45] The question is whether the allegation quoted in the preceding
paragraph is sufficient to hold Bila in breach of the order beyond reasonable
doubt. The difficulty I have with this allegation is its lack of particularity.
First, it must be accepted that by this stage, Bila was in phase 3 of the
prospecting activities in terms of the PWP. It is not alleged by how much it
exceeded its allowable extraction for this period.

[46] No allegations are made as to whether it had exceeded the permissible
amount of chrome ore. It is left to the court to make its own deductions that
the additional tons of chrome referred to in the quoted part of the relevant
paragraph meant that Bila had exceeded what it was allowed to extract.

[47] If regard is had to the slides provided in support of the measurements
for 2019 and 2020, it appears that the measurements for 2019 were done on
24 May 2019, which leaves the possibility that the measurements done on 3
July 2020 included the six months period from May 2019 to November 2019
(which is a period not forming part of the complaint).

[48] It is neither conclusive nor clear whether any extractions took place
after November 2019 to 3 July 2020. This is because calculations presented
for 2019 stopped on 24 May 2019, which could mean calculations for 2020
included those from 25 May 2019. It may be surmised, according to
Samancor’s counsel, that part of the volumes removed should be between 30
November 2019 and 3 July 2020. This, however, may be lending us into the
realm of supposition.

[49] The difficulty is that the allegations made by Samancor are too wide
and difficult to devise into the particular period. This may be because of the
manner in which the allegations are made, which leaves gaps and requires the
court to put pieces together for it to understand how the infringement could
be attributed to that period.

[50] While it may be easy to say numbers speak for themselves, one must
be careful that such numbers indicate a breach during the period concerned. I
am not sure that it is fair to have to undertake the analysis of assembling pieces
together, that counsel sought to make in argument. This is so because the party
having to respond to the allegations must be clear as to the exact infringement
and not have to wait for the hearing to take place in order to understand what
the actual breach is, ie the analysis of the quantities and comparisons is, as
shown in the slides.

[51] In my view, the hurdle that Samancor has to overcome is to show non-
compliance beyond a reasonable doubt, and that requires a clearly pleaded
case. Lack of clarity regarding the breach of Neukircher J’s order could have

been brought about by the clumping together of allegations dealing with the
orders of Janse van Niewenhuizen J and Neukircher J.

[52] The problem with that approach is that all that was required to be shown
in respect of Janse van Niewenhuizen J’s order was that Bila had conducted
prospecting operations after the granting of the order. In contrast, insofar as
Neukircher J’s order is concerned, Samancor had to show that Bila was
mining after 30 November 2019 to 22 July 2020.

[53] The theme of mixing allegations in respect of the two orders
unfortunately showed equivocation, even if not intended, that permeated the
entire founding affidavit. For example, another averment is made in the
founding affidavit that Bila was continuing to conduct unlawful mining and/or
prospecting activities and operations on RE Portion 2.

[54] In the circumstances, it is difficult to find that non-compliance with
Neukircher J’s order was distinctly and clearly decipherable from allegations
dealing with the breach of Janse van Niewenhuizen J’s order, without having
to apply a strained analysis to the facts. Contempt of a court is a serious matter,
with grave consequences; hence, the standard that must be met whenever a
criminal sanction is sought is proof beyond reasonable doubt.

[55] While there may be a general sense that even during the period alleged,
Bila may have been conducting mining operations, clear and unequivocal
allegations ought to have been made. The facts, such as they are, are

insufficient to sustain an inference of non-compliance during the alleged
period.

[56] For those reasons, I am constrained to find that Samancor has not
clearly established the breach of Neukircher J’s order beyond a reasonable
doubt.

[57] As regards Janse van Niewenhuizen J’s order, the issue is whether
wilfulness and mala fides have been established. Bila alleged that it relied on
legal advice that the order, although interlocutory, was final in effect. In this
regard, a notice of application for leave to appeal was lodged, even though the
application was never pursued.

[58] As indicated earlier, counsel for Samancor argued that Bila failed to
provide any detail pertaining to the advice, including what the advice was and
by whom it was given, as contemplated in Abrahams.8 Whether sufficient
detail has been provided in support of a defence of legal advice, is a question
of fact. In Abrahams, the appellant had been convicted of contravening the
Rent Control Act 80 of 1986, in that he demanded from tenants rental in
excess of what was determined by the Rent Board while he had received a
letter from the Rent Board stating what the controlled rent was. He then
consulted an attorney who advised him that he was entitled to increase the rent
as he had done. In this regard, the Court held:
‘At the time he sought the attorney’s advice he knew or at least suspected that the premises
were rent-controlled and in addition he had a letter from the Rent Board confirming that

8 S v Abrahams 1983 (1) SA 137 (A) at 146F-H.

fact. In such circumstances it was not sufficient for one burdened by the onus under s 18
(4) (a) to seek to discharge the onus by stating in court that his attorney told him that his
action in requiring the payment of an increased rent was in order. In the case of R v
Meischke’s (supra) the accused advanced in mitigation of his sentence the fact that his
attorney had advised him that he need not obtain permission of the Rent Board to increase
rentals controlled by a determination. In dealing with this plea TINDALL ACJ stated in
the course of his judgment in that case at 711 that if 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 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.’9 (My emphasis.)

[59] In R v Meischke’s10 the Court had said the following:
‘This, however, must be emphasised, that if the accused wishes to rely on the receipt of
such advice as a mitigating factor, he ought to give evidence in mitigation so that the court
may be in a position to investigate whether in truth he did get such advice, and on what
statement of facts by the accused the advice was given. If, as in the present case, the
accused merely states in his evidence given before conviction that he took legal advice, he
is not likely to be exposed to full interrogation on the matter. But if he gives such evidence
after conviction and then pleads in mitigation that he acted on legal advice, he will be
asked to produce the advice, if it was in writing, and whether it was written or oral, and
the court will require to be satisfied that the advice was given on a full and true statement
of facts. In the absence of these safeguards the plea of having acted on legal advice would
be liable to abuse. In the present case, owing to the fact that Amoils did not tender evidence
in mitigation, these safeguards were absent; the magistrate had no opportunity of verifying

9 Abrahams fn 8 above at 146 D-H.
10 R v Meischke’s (Pty) Ltd and Another 1948 (3) SA 704 (A) at 711.

whether the accused did get the legal advice in question and, if he did, on what facts such
advice was given. In the circumstances the statement made by Amoils under cross
examination that his legal adviser had advised him that the permission of the control board
was not necessary, is of no value in the assessment of the punishment and can be
disregarded.’ (My emphasis.)

[60] As appears from the cases in the preceding two paragraphs, evidence in
support of the plea of legal advice is required to prevent abuse. In both
Abrahams and Meisckhe’s, the accused simply mentioned in court that they
had relied on legal advice without providing evidence in support of such
claims. Consequently, it was held that the respective courts could not verify
whether the alleged legal advice was given and, if so, on what facts. There are
additional factors though, that distinguish those cases from the present one. In
Meischke’s the accused appears to have relied on legal advice during cross-
examination. In Abrahams the accused ‘was well aware of the fact that he was
acting in conflict with the requirements of the Act.’11

[61] In the present case, throughout the answering affidavit, the theme that
carried through Bila’s defence was that the two court orders were
automatically suspended, and in particular that of Janse van Niewenhuizen J,
due to the lodgement of the application for leave to appeal. For present
purposes, the focus is not on the correctness of that defence, but on whether
legal advice to that effect was given, by whom, its nature and whether it was
bona fide received by Bila.

11 Abrahams fn 8 above at 147G.

[62] It is so, that in dealing with the elements of wilfulness and mala fides
all that is recorded is that Bila ‘acted bona fide and on the basis of legal advice
to the effect that the two court orders remain suspended, inoperational and
non-executable for all the reasons already canvassed above.’ (My emphasis.)

[63] As is apparent from the answering affidavit, on 10 December 2019
(which is the same day that Janse van Niewenhuizen J’s order was issued),
Bila’s attorneys addressed a letter to Samancor which, inter alia, stated as
follows:
‘3. Our client has instructed us:
3.1 to file an application for leave to appeal in respect of the judgment of the Honourable
Judge Janse Van Niewenhuizen… .’ (My emphasis.)

[64] On 17 December 2019, Bila indeed lodged that application. As proof
of the lodgement, it annexed a notice of application for leave to appeal. In the
notice, it is stated that the application for leave to appeal did not fall to be
determined in terms of s 18(2) of the Superior Courts Act as the judgment was
final in effect.

[65] In addition, still on 17 December 2019, Bila addressed a letter to the
Department requesting it to urgently constitute an independent panel to hear
the NEMA administrative appeal including Bila’s objection.

[66] Elsewhere in the answering affidavit, Bila stated that the question of
whether Janse van Niewenhuizen J’s order is automatically suspended ‘is
totally dependent on the finding in respect of the legal question whether the
decision was final in effect.’ The deponent went on to allege that he had

‘received legal advice that in view of the aforegoing, the relevant decisions
[could] not be breached.’

[67] Samancor dealt with these allegations in the replying affidavit.
Consequently, it could not be argued that it was ambushed during oral
argument. Although, the notice of application for leave to appeal was not dealt
with under the heading of wilfulness and mala fides, it clearly asserted the
automatic suspension of the orders. While the notice does not clearly set out
the reasons why Janse van Niewenhuizen J’s order is final in effect, in
circumstances like these, it is hard to conclude that Bila as a lay litigant did
not genuinely accept the advice given by its legal representatives, albeit
uncritically so, that the interim order could be appealed against.

[68] I am therefore of the view that, from the reading of the papers and the
context of this case, the legal advice given was clear. The court cannot ignore
it. For the purposes of contempt, the question is whether there is sufficient
explanation given for the breach, which raises reasonable doubt as to whether
the order was disobeyed wilfully and mala fide.

[69] In my view, as Fourie J found, the alleged legal advice was in respect
of an issue that was legal in nature. It depended on the interpretation of the
order, its context and particular circumstances. Although the legal advice was
later found to have been incorrect, this does not detract from the fact that it
was given and Bila accepted it in good faith.

[70] Even if Bila’s acceptance of the advice could be said to be
unreasonable, if it is accepted that it was received bona fide, it would not
amount to contempt.12 In the result, Fourie J’s conclusion that sufficient
evidence had been provided by Bila, creating reasonable doubt that its non-
compliance with Janse van Niewenhuizen J’s order was not wilful and mala
fide, cannot be faulted. Accordingly, for all the foregoing reasons the appeal
must fail.

[71] It remains to address the issue of costs. Bila asked for costs of two
counsel. This matter was not complex to warrant such a costs order. I would
therefore not allow costs of two counsel.

[72] In the result, the appeal is dismissed with costs.

______________________________
N P MABINDLA-BOQWANA

JUDGE OF APPEAL

12 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) paras 9 and 10.

APPEARANCES

For appellant:

G D Wickins SC
Instructed by:

Malan Scholes Inc, Johannesburg
Claude Reid Attorneys, Bloemfontein

For respondent:

D C Mpofu SC (with M ka-Siboto)
Instructed by:

Mabuza Attorneys, Johannesburg
Matsepes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 NOVEMBER 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Samancor Chrome Limited v Bila Civil Contractors (Pty) Ltd (Case no 810/2021) [2022]
ZASCA 163 (28 November 2022)
Today, the Supreme Court of Appeal (SCA) dismissed with costs an appeal against a decision of the
Gauteng Division of the High Court, Pretoria (the high court).
The issue before the SCA was whether the respondent, Bila Civil Contractors (Pty) Ltd (Bila)
was in contempt of two court orders granted by the high court, per Neukircher J on 1 July 2019
and Janse van Niewenhuizen J on 10 December 2019, respectively.
Samancor is the co-owner and the holder of a converted mining right in respect of the
Remaining Extent Portion 2 of the farm, Elandskraal 469 JQ (RE Portion 2). It has the sole and
exclusive right to mine and recover chrome in, on and under RE Portion 2. Bila has a
prospecting right for chrome ore over RE Portion 2. In terms of this right, it is entitled to remove
and dispose, for its benefit, chrome ore and other minerals found during prospecting operations
on RE Portion 2.
On 12 June 2019, Samancor lodged an urgent application in the high court for an order
interdicting Bila, its employees, and contractors from conducting unlawful mining operations
on RE Portion 2. In resisting Samancor’s application, Bila denied that it was conducting
unlawful mining activities. The matter served before Neukircher J, who found in favour of
Samancor on 1 July 2019. Bila applied for leave to appeal against Neukircher J’s order, which
was dismissed on 12 August 2019.
On 8 September 2019, Samancor lodged another application in the high court for an order,
joining Bila’s directors as respondents, and for Bila and its directors to be held in contempt of
the order granted by Neukircher J on 1 July 2019. Samancor’s second application was heard
by Van der Westhuizen J, who dismissed it on 30 September 2019 on the basis that Samancor
could not obtain an order for contempt ‘summarily against the respondents [Bila’s directors]
without them being granted a need to be heard’.
On 7 October 2019, Bila applied for leave to appeal Neukircher J’s order to this Court, which
was dismissed on 30 November 2019. Nearly eight months later, on 22 July 2020, it applied
for leave to appeal to the Constitutional Court, which was dismissed on 13 November 2020.

The dismissal of the application for leave to appeal by this Court on 30 November 2019, made
Neukircher J’s order operative and enforceable until 22 July 2020, when an application for
leave to appeal was lodged to the Constitutional Court.
On 13 July 2020, Samancor lodged another application, which is the subject of this appeal, for
an order holding Bila in contempt of the orders granted by Neukircher J on 1 July 2019 and
Janse van Niewenhuizen J on 10 December 2019. Fourie J heard that application. Counsel for
Samancor submitted that the difference between the application that served before Van der
Westhuizen J in respect of Neukircher J’s order and the one heard by Fourie J was the
applicable contempt period.
According to Samancor, Bila continued to conduct mining and prospecting activities on RE
Portion 2 despite the lodgement of the internal appeal with the Department of Environment,
Forestry and Fisheries, in terms of the National Environmental Management Act 107 of 1998
(NEMA), against the decision to grant Bila an environmental authorisation, in respect of a
prospecting right that had been granted to it over RE Portion 2.  In terms of s 43(7) of NEMA,
an appeal suspends an environmental authorisation. Activities by Bila on RE Portion 2 were
accordingly suspended.
Because of this conduct, Samancor lodged an urgent application to the high court seeking an
order interdicting Bila from conducting any activities on RE Portion 2 until the internal appeal
had been determined. On 10 December 2019, Janse van Niewenhuizen J granted an order
interdicting Bila from being involved, in any manner whatsoever, in any activities, including
prospecting operations on RE Portion 2, pending the outcome of the appeal.
In its defence, Bila contended that the orders were not capable of being breached, as they were
not operative. Neukircher J’s order, so it contended, was automatically suspended by virtue of
the provisions of s 18(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) as
the papers seeking leave to appeal to the Constitutional Court had then been filed. In respect of
Janse van Niewenhuizen J’s order, Bila alleged that although the order was of an interim nature,
it was final in effect, and therefore its operation was suspended upon the lodging of the
application for leave to appeal against it.
The SCA found that Fourie J was correct in dismissing this defence because Janse van
Niewenhuizen J’s order was interlocutory in nature and therefore not suspended as s 18(2) of
the Superior Courts Act explicitly provides. Neukircher J’s order remained operational during
the period of 30 November 2019 and 22 July 2020. It was similarly not suspended during the
period in which Samancor claimed the unlawful activities were taking place.
In respect of non-compliance with Neukircher J’s order, the SCA found that the allegations
made by Samancor were too wide and difficult to devise into the particular period, given that
the contempt was alleged to only be in respect of the period from 30 November 2019 to 22 July
2020. This may be because of the manner in which the allegations were made, which left gaps
and required the court to put pieces together for it to understand how the infringement could
be attributed to that period. Samancor clumped together allegations dealing with both the orders
of Janse van Niewenhuizen J and Neukircher J.
The problem with that approach was that, all that was required to be shown in respect of Janse
van Niewenhuizen J’s order was that Bila had conducted prospecting operations after the
granting of the order. In contrast, insofar as Neukircher J’s order was concerned, Samancor had
to show that Bila was mining after 30 November 2019 to 22 July 2020. For those reasons, the
SCA found that Samancor had not clearly established the breach of Neukircher J’s order
beyond a reasonable doubt.

As regards Janse van Niewenhuizen J’s order, to rebut an inference of wilfulness and mala
fides, Bila contended that it acted on legal advice that the order was automatically suspended
by virtue of it lodging a notice of application for leave to appeal that order. Furthermore,
although it was interim in nature, it was final in effect. The SCA found that the alleged legal
advice was in respect of an issue that was legal in nature. It depended on the interpretation of
the order, its context and particular circumstances. It held that although the legal advice was
later found to have been incorrect, this did not detract from the fact that it was given and Bila
accepted it in good faith. Even if Bila’s acceptance of the advice could be said to be
unreasonable, if it is accepted that it was received bona fide, it would not amount to contempt.
In the result, Fourie J’s conclusion that sufficient evidence had been provided by Bila, creating
reasonable doubt that its non-compliance with Janse van Niewenhuizen J’s order was not wilful
and mala fide, could not be faulted.

~~~~ends~~~~