THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 566/2016

In the matter between:

CORNELIUS JOHANNES ALEXANDER LOURENS                APPELLANT

and

PREMIER OF THE FREE STATE PROVINCE          FIRST RESPONDENT
PAN SOUTH AFRICAN LANGUAGE BOARD      SECOND RESPONDENT

Neutral citation: Lourens v Premier of the Free State Province & another
(526/16) [2017] ZASCA 60 (25 May 2017)

Coram:
Maya AP and Fourie and Schippers AJJA

Heard:

19 May 2017

Delivered:
25 May 2017

Summary:
Contempt of court: failure to comply with court order: no proof
of non-compliance, wilfulness or mala fides: s 16(2)(a)(i) of the Superior Courts
Act 10 of 2013: issues on appeal having no practical effect: appeal dismissed with
costs.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Ebrahim J
sitting as court of first instance):

The appeal is dismissed with costs.
__________________________________________________________________
JUDGMENT
__________________________________________________________________

Schippers AJA (Maya AP and Fourie AJA concurring):

[1] This is an appeal against the dismissal of the appellant’s application for an
order that the first respondent, the Premier of the Free State Province (the Premier),
be held in contempt of an order issued by the court a quo on 7 November 2013 (the
order); that he be imprisoned for 90 days; and that he pay costs on an attorney and
client scale.

[2] The matter arises from the following facts. In 2013 the appellant applied to
the court a quo for a declaratory order that the Premier failed to comply with s 6(4)
of the Constitution, read with item 21(1) of Schedule 6 thereto,1 by failing to
regulate and monitor, through legislative and other measures, and within a
reasonable time, the use of official languages in the Free State Province (the

1 Section 6(4) of the Constitution reads:
‘The national government and provincial governments, by legislative and other measures, must regulate and monitor
their use of official languages. Without detracting from the provisions of subsection (2), all official languages must
enjoy parity of esteem and must be treated equitably.’
Item 21(1) of Schedule 6 to the Constitution reads:
‘Where the new Constitution requires the enactment of national and provincial legislation, that legislation must be
enacted by the relevant authority within a reasonable period of the date the new Constitution took effect.’

Province). The appellant also sought an order that within nine months of the grant
of the declaratory order, the Premier be directed to put in place and finalise
legislative
and
other
measures
regulating
the
Free
State
Provincial
Administration’s use of official languages in legislation and policy documents.
Subsequently the parties agreed to the order, the  relevant part of which reads:
‘First Respondent shall, as far as it is within his authority and powers, give effect to the
provisions of section 6(4) of the Constitution of the Republic of South Africa, 1996, read with
item 21(1) of Schedule 6 to the Constitution, by putting in place legislative and other measures to
regulate and monitor the use of official languages by the Free State Provincial Administration on
or before 31 March 2014.’2 (My translation)

[3] On the same day that the order was granted, the Premier wrote to the
Member of the Executive Council for Sports, Arts, Culture and Recreation (the
MEC), responsible for language matters in the Province. He requested the MEC to
ensure that his department approved a language policy and language bill; that those
documents were submitted timeously to the executive council; and that they were
tabled before the Free State Legislature (the Legislature) on or before 31 March
2014. This was done. On 26 March 2014 the executive council approved the Free
State Provincial Government Language Policy (the Language Policy) for
implementation in 2014/2015 and directed that the Use of the Free State Official
Languages Bill, 2014 (the Language Bill) be tabled before the Legislature. The
MEC wrote to the speaker of the Legislature on 26 March 2014 and asked her to
table the Language Bill or refer it to a committee, whichever process was quickest.
On 28 March 2014 the Language Bill was published in the Provincial Gazette, and

2 In its original form the order reads:
‘Eerste respondent, insoverre dit binne sy bevoegdhede, gesag en magte is, gevolg sal gee aan die bepalings van
Artikel 6(4) van die Grondwet van die Republiek van Suid-Afrika, 1996, gelees met item 21(1) van [S]kedule 6 van
die Grondwet, deur wetgewende en ander maatreëls in plek te stel om die gebruik van amptelike tale deur die
Vrystaatse Provinsiale Administrasie te reël en te monitor en wel voor of op 31 Maart 2014.’

was thus in the domain of the Legislature to be dealt with according to its rules and
orders.

[4] On 28 March 2014 the appellant was informed in writing of these
developments and told that the Premier had discharged his duties as envisaged in
the order. The appellant however disagreed and took the view that the Premier was
in control of the legislative process and that he could expedite it. By letter dated 22
April 2014 the appellant was again informed that the Premier, as the executive
authority of the Province, had discharged his duties under the order insofar as it
was within his responsibilities and powers, and that the legislative authority of a
province vests in its provincial legislature in terms of s 104 of the Constitution.

[5] The Language Bill however lapsed and was not passed by the Legislature
due to the general elections held in 2014. In a letter dated 9 October 2014, the
secretary of the Legislature explained the position to the appellant, in summary, as
follows. The term of the Legislature came to an end as a result of the general
elections in 2014 and all outstanding proposed legislation also lapsed. Rule 141 of
the Standing Rules and Orders of the Legislature states that the proceedings on any
bill which lapsed owing to the dissolution of the Legislature, may be introduced in
the new legislature, after which it must be referred to the relevant committee of the
Legislature for consideration. This entails a briefing by the responsible department
to the committee; a public participation process facilitated by the committee;
consideration of inputs by the public and a report to the House, which then
considers the report and the bill in terms of s 114 of the Constitution; and if passed
by the Legislature, the Premier assents to and signs the bill, in terms of s 121 of the
Constitution. The appellant was also told that once the Language Bill was tabled

by the MEC, the Legislature would ensure that it was considered and finalised
without delay.

[6] Subsequently the Language Bill was republished in the Provincial Gazette in
November 2014, resubmitted to the executive council, referred by the Speaker to a
portfolio committee for consideration in June 2015 and all 11 Free State provincial
government departments were consulted about the implementation of the Language
Policy. The Language Bill was once again tabled before the Legislature.

[7] It is undisputed that under the Rules and Orders of the Legislature, the
Premier has no power to intervene in the legislative process. In any event, s 104(1)
of the Constitution makes it clear that the legislative authority of a province is
vested in its provincial legislature. Despite this, in June 2015 the appellant
launched the contempt application. The founding affidavit in that application states
that the Premier ‘deliberately failed to submit the Free State language legislation to
the Free State Legislature, either personally or through the MEC responsible for
this function’3 (my translation); and that ‘the actor in the Executive Authority is
also the actor who plays the main role in the Legislature, in this case, the first
respondent’4 (my translation).

[8] In the light of the facts outlined above and s 104(1) of the Constitution, it
will immediately be noted that these allegations are simply wrong. The Premier

3 The relevant allegation is in these terms:
‘Ek wil onmiddellik meld dat volgens my kennis dat tot datum van aflegging van hierdie verklaring eerste
respondent gefaal en opsetlik versuim het om die Vrystaatse Taalwetgewing by die Vrystaatse Wetgewer in te dien
hetsy persoonlik of hetsy toe te sien dat sy Lid van die Uitvoerende Raad, wat hiervoor verantwoordelik is, dit
doen.’
4 This allegation reads:
‘… die akteur in die Uitvoerende Gesag ook die akteur, wat die hoofrol speel, in die Wetgewer is, synde die eerste
respondent in hierdie geval.’

opposed the contempt application. He denied that he wilfully disobeyed the order
and stated that throughout, he had acted on the advice of experienced and senior
legal advisers in his department. The court a quo dismissed the contempt
application with costs, because the evidence did not establish that the Premier had
wilfully and mala fide disregarded the order.

[9] On 28 March 2017, whilst this appeal was pending, the Legislature passed
the Use of Free State Official Languages Act, 2017 (the Languages Act), which
will come into operation on 1 June 2017 as determined by the Premier by
Proclamation No 9 of 2017 in Provincial Gazette No 16 of 12 May 2017. Given
this development, Mr De Beer, for the appellant, rightly conceded that the order
sought on appeal would have no practical effect or result, and that the appeal may
be dismissed on this ground alone, as contemplated in s 16(2)(a)(i) of the Superior
Courts Act 10 of 2013.5

[10] Consequently, the only issue that must be decided is costs. On the authority
of Biowatch,6 it was submitted that the appellant should not be mulcted in costs
because he was asserting a constitutional right; and that he was substantially
successful in doing so, by virtue of the promulgation of the Languages Act.

[11] The appellant however is mistaken. To begin with, properly construed, the
relief sought – the committal of the Premier for 90 days for contempt of the order –
is not the assertion of a constitutional right. Further, in his pursuit of that relief, the
appellant was not successful at all: he failed to show that the Premier did not

5 Section 16(2)(a)(i) of the Superior Courts Act reads:
‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.’
6 Biowatch Trust v Registrar, Genetic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10)
BCLR 1014 (CC).

comply with the order; or, if there was non-compliance, that the Premier acted
wilfully and mala fide.

[12] It is now settled that an applicant must prove the requisites of contempt (the
order, service or notice, non-compliance, wilfulness and mala fides) beyond
reasonable doubt. But once these requisites have been proved, the respondent bears
an evidential burden of showing that non-compliance was not wilful and mala
fide.7 Disobedience of a civil order will constitute contempt only if the breach of
the order was committed deliberately and mala fide. Unreasonable non-
compliance, provided that it is bona fide, does not constitute contempt.8 And
where, as in this case, an applicant approaches a court on notice of motion, a
dispute of fact as to whether non-compliance was wilful and mala fide falls to be
determined on the respondent’s version; unless the court considers that the
respondent’s allegations do not raise a real, genuine or bona fide dispute of fact, or
are so far-fetched or clearly untenable that the court is justified in rejecting them
merely on the papers.9

[13] Applying these principles to the facts in the instant case, it is clear from the
order that the Premier was required to give effect to the provisions of s 6(4) of the
Constitution, ‘as far as it is within his authority and powers’. This, the Premier did.
Immediately after the order was issued, he ensured that the relevant department
approved the Language Policy and Language Bill; that it was approved by the
executive council; that the Language Bill was published in the Provincial Gazette;
and that it was tabled before the Legislature. Once the Language Bill was before

7 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 42.
8 Fakie fn 7 above paras 9 and 10.
9 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C; Fakie fn 7 paras 55
and 56.

the Legislature, it alone had legislative authority, as envisaged in s 104(1) of the
Constitution. In terms of s 121(1) of the Constitution, the Premier then only had
the power to assent to and sign the Language Bill, or refer it back to the Legislature
if he had reservations about its constitutionality.10 It follows that the Premier
complied with the order and for this reason alone, the contempt application had to
fail.

[14]  Apart from this, there was no wilful and mala fide non-compliance with the
order. In the answering affidavit, the Premier states that in giving effect to the
order, throughout he had acted on the advice of his legal advisers. There is no
evidence to gainsay this and it cannot be suggested that the explanation is
untenable. The court a quo was thus correct in dismissing the contempt application
on the basis that the appellant had not proved wilfulness and mala fides.

[15] What remains is the appellant’s reliance on Biowatch. The Constitutional
Court in Biowatch affirmed the general rule laid down in Affordable Medicines,11
namely that in constitutional litigation between private parties and the government,
ordinarily, if the government loses, it should pay the costs of the other side, and if
the government wins, each party should bear its own costs.12 But this rule is not
unqualified: if an application is frivolous, vexatious, manifestly inappropriate,
unreasonable or unnecessary, the applicant may be ordered to pay costs.13

10 Section 121(1) reads:
‘The Premier of a province must either assent to and sign a Bill passed by the provincial legislature in terms of this
Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for
reconsideration.’
11 Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247 (CC) para 138.
12 Biowatch fn 6 above para 22.
13 Biowatch fn 6 above para 24, citing with approval Wildlife and Environmental Society of South Africa v MEC for
Economic Affairs, Environment and Tourism, Eastern Cape & others 2005 (6) SA 123 (E) at 144B-C.

[16] The contempt application, indirectly related to a constitutional provision,
was in the circumstances manifestly inappropriate and unreasonable. In March
2014 and again in April and October 2014, the appellant was informed of the steps
which the Premier had taken in giving effect to the order; and the reasons why the
Language Bill had not been passed by the Legislature. It should then have been
clear to the appellant that the Premier had done everything in his power to give
effect to the order; and that an application for contempt of court was doomed to
failure from the outset. Even after the answering affidavit was delivered, the
appellant persisted with the contempt application, to the point of appealing the
decision refusing it. Moreover, the Premier was compelled to oppose an
application seeking his imprisonment, and incur unnecessary costs, ultimately paid
by taxpayers. In this regard, it should be noted that the appellant is no ordinary
litigant: he is an attorney. He thus should be familiar with the relevant
constitutional provisions and the principles relating to contempt of court, especially
since he launched identical proceedings in the North West Province; and
threatened to bring a similar application in terms of s 6(4) of the Constitution, in
KwaZulu-Natal.

[17] In the circumstances, fairness dictates that the appellant should be ordered to
pay the costs of the appeal.

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

______________
A Schippers
Acting Judge of Appeal

Appearances
For Appellant:
R J de Beer
Instructed by: Lourens Attorneys,
c/o Symington & De Kock Attorneys, Bloemfontein

For Respondent:

J Lubbe
Instructed by:
The State Attorney, Bloemfontein