THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No:  072/2015

In the matter between:

COMPENSATION SOLUTIONS (PTY) LTD

APPELLANT

and

THE COMPENSATION COMMISSIONER

FIRST RESPONDENT
THE DIRECTOR-GENERAL, DEPARTMENT
OF LABOUR

SECOND RESPONDENT
THE MINISTER OF LABOUR

THIRD RESPONDENT

Neutral citation: Compensation Solutions (Pty) Ltd v The Compensation
Commissioner (072/2015) [2016] ZASCA 59 (13 April 2016)

Coram:       Maya AP, Cachalia, Pillay, Petse and Dambuza JJA

Heard:
4 March 2016

Delivered: 13 April 2016

Summary: Contempt of court – repeated failure by the Compensation Commissioner
to comply with a settlement order of which he was aware – settlement
order has the full force of a court order – commissioner not establishing
reasonable doubt that his non-compliance was not wilful and mala fide –
appellant proved requisites for civil contempt of court and the
commissioner‟s committal to prison therefor.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Hughes J sitting as
court of first instance):

(a) The appeal is upheld with costs including the costs of two counsel.
(b) Paragraph 1 of the order of the court a quo is set aside and replaced with the
following:
„1 The first respondent, Mr Shadrack Shivumba-Homu Mkhonto, is declared to be in
contempt of paragraphs 1, 2, 5 and 6 of the court order of 31 July 2009 under case
number 35047/2009.
2 The first respondent is accordingly sentenced to undergo three months‟ imprisonment
suspended for a period of five years on condition that he is not convicted of contempt
of court committed within this period.
3 The first respondent is ordered to pay the costs of the application, such costs to
include the costs of two counsel where employed, the costs reserved on 20 August
2013, 5 September 2013, 12 and  18 February 2014 and the costs of attending a
meeting in Johannesburg on 7 August 2014.‟
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Maya AP (Cachalia, Pillay, Petse and Dambuza JJA concurring):

[1] This is an appeal against portion of the judgment of the Gauteng Division of the
High Court, Pretoria (Hughes J) which declared the Compensation Commissioner, Mr

Shadrack Shivumba-Homu Mkhonto and the first respondent herein (the
commissioner), not to be in contempt of paragraphs 1, 2, 5 and 6 of its order dated 31
July 2009 in case number 35047/2009. The appeal is with the leave of the court a quo.

Background
[2] Section 22 of the Compensation for Occupational Injuries and Diseases Act 130
of 1993 (COIDA)1 entitles employees who are injured on duty (COID patients)2 to

1 The section makes provision for the right of employees to compensation as follows:
„(1) If an employee meets with an accident resulting in his disablement or death such employee or the dependants of such
employee shall, subject to the provisions of this Act, be entitled to the benefits provided for and prescribed in this Act.
(2) No periodical payments shall be made in respect of temporary total disablement or temporary partial disablement which
lasts for three days or less.
(3) (a)
If an accident is attributable to the serious and wilful misconduct of the employee, no compensation shall be
payable in terms of this Act, unless –
(i) the accident results in serious disablement; or
(ii) the employee dies in consequence thereof leaving a dependant wholly financially dependent upon him.
(b) Notwithstanding paragraph (a) the Director-General may, and the employer individually liable or mutual association
concerned, as the case may be, shall, if ordered thereto by the Director-General, pay the cost of medical aid or such portion
thereof as the Director-General may determine.
(4) For the purposes of this Act an accident shall be deemed to have arisen out of and in the course of the employment of an
employee notwithstanding that the employee was at the time of the accident acting contrary to any law applicable to his
employment or to any order by or on behalf of his employer, or that he was acting without any order of his employer, if the
employee was, in the opinion of the Director-General, so acting for the purposes of or in the interests of or in connection
with the business of his employer.
(5) For the purposes of this Act the conveyance of an employee free of charge to or from his place of employment for the
purposes of his employment by means of a vehicle driven by the employer himself or one of his employees and specially
provided by his employer for the purpose of such conveyance, shall be deemed to take place in the course of such
employee‟s employment.‟
2 The COIDA defines an „employee‟ in s 1(xix) as „a person who has entered into or works under a contract of service or of
apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether
the remuneration is calculated by time or by work done, or is in cash or in kind, and includes –
(a)
a casual employee employed for the purpose of the employer‟s business;
(b)
a director or member of a body corporate who has entered into a contract of service or of apprenticeship or
learnership with the body corporate, in so far as he acts within the scope of his employment in terms of such contract;
(c)
a person provided by a labour broker against payment to a client for the rendering of a service or the performance
of work, and for which service or work such person is paid by the labour broker;
(d)
in the case of a deceased employee, his dependants, and in the case of an employee who is a person under
disability, a curator acting on behalf of that employee;
but does not include –
(i)
a person, including a person in the employ of the State, performing military service or undergoing training referred
to in the Defence Act, 1957 (Act 44 of 1957), and who is not a member of the Permanent Force of the South African
Defence Force;
(ii)
a member of the Permanent Force of the South African Defence Force while on „service in defence of the
Republic‟ as defined in section 1 of the Defence Act, 1957;
(iii)
a member of the South African Police Force while employed in terms of section 7 of the Police Act, 1958 (Act 7 of
1958), on “service in defence of the Republic” as defined in section 1 of the Defence Act, 1957;
(iv)
a person who contracts for the carrying out of work and himself engages other persons to perform such work;

claim compensation, which includes reasonable costs incurred by them or on their
behalf in respect of medical aid3 necessitated by an accident4 or an occupational
disease,5 not from their employers,6 but from the Compensation Fund established under
s 15 of the COIDA.7 These employees consult a wide range of medical practitioners
who are entitled to recover their consultation fees, payable in accordance with a tariff
of fees8 determined from time to time by the second respondent, the Director-General
of the Department of Labour,9 from the commissioner to whom the Director-General
has delegated this function.

[3] In terms of s 6A of the COIDA, the commissioner‟s office administers the

(v)
a domestic employee employed as such in a private household‟.
3 Defined in s 1(xxiv) of the COIDA as meaning „medical, surgical or hospital treatment, skilled nursing services, any
remedial treatment approved by the Director-General, the supply and repair of any prosthesis or any device necessitated by
disablement, and ambulance services where, in the opinion of the Director-General, they were essential‟.
4 The term „accident‟ is defined for purposes of COIDA in s 1(i) thereof as meaning „an accident arising out of an
employee‟s employment and resulting in a personal injury, illness or the death of the employee‟.
5 Defined in s 1(xxix) of the COIDA as „any disease contemplated in section 65 (1) (a) or (b)‟ thereof.
6 The employers are, however, required to register with the commissioner in terms of Chapter IX of COIDA to whom they
are liable to pay a levy, which becomes part of the assets of the Compensation Fund for the purpose of enabling payment of
compensation to or on behalf of employees who have been injured or killed or contracted a disease in the course of their
employment, and who become entitled to compensation in terms of COIDA.
7 The section provides the following:
‘Compensation Fund
15(1) There is hereby established a fund to be known as the compensation fund.
(2)  The compensation fund shall consist of
(a)  any moneys vested in the compensation fund in terms of subsection (3);
(b)  the assessment paid by employers in terms of this Act;
(c)  any amounts paid by employers to the Director-General in terms of this Act;
(d)  any penalties and fines imposed in terms of this Act other than by a court of law;
(e)  any interest on investments of the compensation fund and the reserve fund;
(f)  any amounts transferred from the reserve fund;
(g)  the payments made to the Director-General in terms of section 88;
(h)  any other amounts to which the compensation fund may become entitled.
(3)(a)  The accident fund established by section 64 of the Workmen‟s Compensation Act shall, as from the
commencement of this Act, cease to exist, and all amounts credited to the accident fund immediately before such
commencement, shall as from such commencement vest in the compensation fund.
(b)  All liabilities and rights, existing as well as accruing, of the accident fund shall devolve upon the compensation
fund as from the commencement of this Act.‟
8  In terms of s 76(1) of the COIDA and the amounts published annually in the Government Gazette by the Minister of
Labour.
9 The Director-General is responsible for the implementation and administration of the COIDA and may delegate the day-to-
day performance of her or his duties to the commissioner who is appointed by the Minister in terms of s 2(1)(a) of the
COIDA.

processing and payment of all claims arising from the provision of compensation and
medical services to affected employees and their dependants, and any refunds to
employers where applicable.10 The claims must be lodged in the manner and form
stipulated by the COIDA and the regulations promulgated thereunder.11 According to
the parties, this is often a time-consuming and onerous task for the medical
practitioners. The result is that claims often do not conform to the relevant
requirements. This hampers the ability of the commissioner to consider and adjudicate
the claims and render due payment.

[4] It is in this context that the appellant, Compensation Solutions (Pty) Ltd, which
trades under the name and style of CompSol, renders services to, inter alia, medical
practitioners12 who provide medical services to COID patients, in respect of the
administration of medical aid accounts for services and consumables they dispense to
the patients for submission to the commissioner. It does this by concluding contractual
arrangements with the medical practitioners in terms of which it purchases the right,
title and interest in medical aid account claims against the commissioner in respect of
the services they have rendered to COID patients, at a discount. The appellant thus

10 Under s 6A of the COIDA in terms of which:
„the commissioner shall –
(a) receive notices of accidents and occupational diseases, claims for compensation, medical reports and accounts,
objections, applications, returns of earnings and payments due to the compensation fund;
(b) by notice in the Gazette prescribe the rules referred to in section 56 (3) (c), as well as the forms to be used and the
particulars to be furnished in connection with notice of occupational injuries and diseases, claims for compensation or any
other form or matter which he or she may deem necessary for the administration of this Act.‟
11 In terms of s 43 of the COIDA which provides:
„(1) (a) A claim for compensation in terms of this Act shall be lodged by or on behalf of the claimant in the prescribed
manner with the commissioner or the employer or the mutual association concerned, as the case may be, within 12 months
after the date of the accident or, in the case of death, within 12 months after the date of death.
(b)  If a claim for compensation is not lodged as prescribed in paragraph (a), such claim for compensation shall not be
considered in terms of this Act, except where the accident concerned has been reported in terms of section 39.‟
12 A „medical practitioner‟ is defined in s 1(xxv) of the COIDA as „a person registered as a medical practitioner in terms of
the Medical, Dental and Supplementary Health Service Profession Act, 1974 (Act 56 of 1974)‟.

acquires the right to submit claims to the commissioner and receive payment thereof
for its own account.

[5] The system worked well initially. But inordinate delays taken with the
processing, validation and payment of these claims gradually set in resulting in severe
backlogs. After various unsuccessful efforts to rectify the situation, the appellant
ultimately resorted to litigation, in June 2009. It sought certain declaratory orders and a
mandamus against the commissioner to address the inefficiencies of his office.
Pursuant thereto, the parties concluded a settlement agreement which the
commissioner personally signed on his own behalf and in respect of his co-
respondents. On 31 July 2009 this was made an order of court (the settlement order) in
terms of which the parties agreed, inter alia, that:
„1.
The [commissioner] shall process medical accounts submitted to him in relation to medical
aid provided to employees by medical practitioners, as envisaged in the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (“the Act”) within a reasonable time from the
submission of such accounts.
2.
In respect of the submission of a medical account relating to a claim which has been accepted
(ie the [commissioner] has accepted liability for the claim), and in respect of a medical account
submitted after such acceptance, a reasonable time for the [commissioner] to process, validate and
effect payment of such validated medical accounts is within 75 days of the acceptance of a claim, or
where this occurs after acceptance of the claim, the date of submission of such accounts. For
avoidance of doubt, it is recorded that in respect of medical accounts submitted before acceptance of
a claim, the 75 days will be calculated from the date of acceptance of the claim.
3.
The [commissioner] shall process the backlog of medical accounts . . . by 30 October 2009.
4.
The [commissioner] shall pay the [appellant] interest at the current legal rate of interest
(being 15.5 per cent per annum) on all currently outstanding medical accounts to which the letter of
demand dated 25 March 2009 relates, from such date of demand to the date of payment of each such
respective account.

5.
The [appellant] will submit a compact disc to the [commissioner] on a fortnightly basis
containing a list of claims, and the [commissioner] shall thereupon provide the status of each claim,
and where the claim has been accepted, the date of such acceptance, to the [appellant] within 7
(seven) days of receipt of the compact disc.
6.
The parties record their mutual commitment to a functional process in relation to claims and
medical accounts submitted by the [appellant], and a good working relationship in that regard.
Accordingly to resolve any queries, dispute or discrepancies in relation to medical accounts
submitted for payment, the [appellant] and the [commissioner] (or his designated representatives)
shall meet weekly at the latter‟s Port Elizabeth offices.
7.
This agreement shall apply equally to the [Director-General] as the party principally
responsible for compliance with the obligations and performance of the functions set out in the Act.
8.
The Respondents shall pay the party and party costs of this application, as taxed or agreed,
including the costs of two counsel.
9.
The Respondents consent to this agreement being made an order of court.
10.
The parties accept the above undertakings in settlement of the above application.‟

[6] A mere two months after the settlement order, the commissioner had failed to
comply with his obligations in terms of its provisions. The appellant‟s demand for a
meeting in terms of paragraph 6 of the order also went unanswered. As a result the
appellant launched three action proceedings against him for three separate claims in the
court a quo which were all defended. The appellant applied for summary judgment in
respect of each of the actions and, in the absence of bona fide defences, judgments
were granted against him. However, the commissioner‟s office still failed to process
and pay validated claims within the 75 day period decreed by the settlement order and
incorrectly rejected proper medical accounts. This prompted the appellant to launch
two successive contempt proceedings against the commissioner, in November 2009
and in February 2010, seeking a declaratory order that he was in wilful contempt of the
settlement order. Both proceedings were duly settled upon the commissioner‟s
undertaking to pay the amounts due and the costs thereof. Yet, despite all these

proceedings in which the commissioner had ultimately admitted liability and settled the
amounts in issue, submitted claims were still not processed in accordance with the
settlement order. As at 15 July 2013 an amount of R95 639 044.85 was outstanding for
longer than 75 days.

Proceedings in the court a quo
[7] The commissioner‟s failure to pay this amount prompted the current proceedings
which were launched in July 2013. The appellant sought an order (a) declaring the
commissioner to be in contempt of paragraphs 1, 2, 5 and 6 of the settlement order; (b)
imposing such punishment upon the commissioner for such contempt as the court may
deem meet, payment of the sum of R93 903 293.08  and ancillary relief. The
commissioner opposed the application. But even though he was sued in his personal
capacity, he did not depose to the answering affidavit. Instead it was deposed to by Mr
SM Masalesa, a Senior Practitioner in the Medical Payments section of the
Compensation Fund. An unsworn statement apparently meant to stand as the
commissioner‟s opposing affidavit, after he was specifically given an opportunity by
the court to file a supplementary affidavit deposed to by him personally, was rightly
struck out of the record.

[8] According to Mr Masalesa, the commissioner was not in contempt of the
settlement order as he had tried his best to adhere to its terms. His commitment to
abiding the settlement order and fulfil his statutory obligations, so it was contended,
was evidenced, for example, by the very fact that he had agreed to the settlement
order, the engagement of entities such as Siemens Business Systems and then EOH
Holdings Limited and its subsidiary, Medical Services Organisation South Africa (Pty)
Ltd t/a MSO (MSO) to assist with the processing of the medical accounts and to

implement the automation of the management of the medical account system in a bid to
eliminate the backlogs. Any non-compliance with the settlement order was therefore
neither wilful nor mala fide but was caused by unavoidable challenges. These
challenges included disputes regarding what was owed; the Advance Payment
Agreement scheme concluded by the parties meant to facilitate advance payment of
unverified medical accounts to relieve the appellant‟s cash flow pressures, whose
lawfulness had been questioned by the Auditor-General; inadequate human resources
and an ageing information technology system which was ultimately replaced and
decentralised to all the provinces to improve the turnaround time in processing claims.

[9] After the filing of the replying affidavit the parties concluded yet another
detailed agreement on the future conduct of their dealings, which was also made an
order of court, in terms of which they agreed as follows:
„1. The [appellant] and the [commissioner] shall nominate at least two representatives each who shall
meet as from Monday the 24th of February 2014 during office hours for the purpose of effecting an
accounting reconciliation of all the MSO lists submitted by the [appellant] to the [commissioner] up
until LIST MSO91 or Batch 122;
2. The parties are directed to use their best endeavours in a spirit of cooperation to reach agreement
on such accounting exercise, and to resolve any dispute line items if possible;
3. The parties shall prepare a joint report in relation to the line items upon which agreement has been
reached, and such line items upon which no agreement can be reached. This process shall be
completed by 16h00 on 24 March 2014. The parties shall file this report by no later than 16h00 on
31 March 2014.
4. At the conclusion of each MSO list referred to in paragraph 1 above, a list of line items upon
which agreement has been reached shall be processed by the [commissioner] for immediate payment
in the full and precise amount of that list to the applicable CompSol nominated SP bank accounts;
5. In such instances where a given account that is paid in accordance with the aforegoing, is also
included in the 5 advance payment agreement lists applicable to the advance payments made, the

[appellant] shall repay such accounts by no later than the 10th business day of a calendar month
following the payment of the medical account to the [commissioner];
6. Thereafter the parties shall meet for the same purpose and in the same manner on a bi-weekly
basis;
7. The matter is postponed sine die;
8. Costs of the hearing on 18 February 2014 are reserved.‟

[10] There was no compliance with this order either. No joint report was prepared or
filed as ordered until the appellant unilaterally filed an interim report in the form of an
affidavit. With the intervention of the court the parties thereafter, on 17 September
2014, concluded a joint report in which they agreed, inter alia that „the total sum of the
accounts included in lists MSO 1-91 … then still unpaid, amounted to R93 903 293.08
… due and payable [which] had not been paid because of logistical problems in the
systems of the financial divisions of the [commissioner] to physically effect payment‟.
The commissioner now admitted liability for the amount claimed despite his previous
denial of indebtedness.

[11] Relying on the judgments in Tasima (Pty) Ltd v Department of Transport &
others,13 Johannesburg Taxi Association v Bara-City Taxi Association & others14 and
Federation of Governing Bodies of South African Schools (Gauteng) & another v
MEC for Education, Gauteng,15 the court a quo noted that the commissioner was fully
aware of the settlement order as he was a signatory thereto and made the following
findings. It held however that there was no basis for the contempt proceedings because
the settlement order did not impose obligations towards the court. This was so because
in making the parties‟ agreement an order of court it had merely noted a „contract

13 Tasima (Pty) Ltd v Department of Transport & others 2013 (4) SA 134 (GNP) paras 51, 71, 147 and 151.
14 Johannesburg Taxi Association v Bara-City Taxi Association & others 1989 (4) SA 808 (W) para 8.
15 Federation of Governing Bodies of South African Schools (Gauteng & another v MEC for Education, Gauteng
2002 (1) SA 660 (T).

between the parties in respect of the terms thereof‟ which did „not in any way place the
court in the position of instructing or commanding the parties‟. In the court‟s view,
even if it was wrong in this conclusion, the commissioner‟s non-compliance was
neither wilful nor mala fide because „the disobedience must be contemptuous of the
court and not as between the parties‟, as here. There could therefore „be no contempt
towards the court as no obligation exists between the non-complier and the court‟.

Proceedings on appeal
[12] The issues on appeal were those determined in the court a quo and we were
asked to determine the status of the settlement order and whether the commissioner
acted wilfully and mala fide in failing to comply with its provisions. The gist of the
commissioner‟s argument was that the settlement order was one ad pecuniam
solvendam (for the payment of money) and that the consequence of non-compliance
therewith was therefore execution, not committal for contempt of court. Moreover, the
settlement order lacked the characteristics of „a true court order or a court order stricto
sensu‟ because all its terms were dictated by the parties and were not imposed by the
court on its own motion. It was a mere recordal of such terms and did not „constitute a
direction by the court for a litigant to do, or refrain from doing something‟. Thus its
breach could not found contempt proceedings. And, in any event, there was no
evidence showing beyond reasonable doubt that the commissioner‟s non-compliance
was wilful and mala fide.

[13] Regarding the nature of the settlement order, it is indeed so that an order for the
payment of money in accordance with an order of court cannot found an order for
committal for contempt of court unless such order was made in relation to a

matrimonial16 or a maintenance17 suit. And contempt proceedings are limited to the
case where the court has ordered the respondent to do a certain thing and has indicated
the manner in which it should be done.18 But these principles bear no relevance here
because the terms of the settlement order plainly went beyond requiring payment of
money. Paragraph 1 thereof ordered that the commissioner „shall process medical
accounts submitted to him … within a reasonable period of time from the submission
of such accounts‟. Paragraph 2 stipulated that a reasonable time for the respondent to
process, validate and effect payment of such accounts would be within 75 days from
the various dates described therein. These orders are couched in specific and
imperative terms and are clearly ad factum praestandum (for the performance of or
abstinence from performing specific acts).
[14] Equally wrong is the court a quo‟s view, supported by the respondents, that the
settlement order merely served to rubberstamp the parties‟ agreement. The
Constitutional Court described the status of a settlement order as follows in Eke v
Parsons (paras 29 and 31):19
„Once a settlement agreement has been made an order of court, it is an order like any other. It will be
interpreted like all court orders. …
[Its] effect is to change the status of the rights and obligations between the parties. Save for
litigation that may be consequent upon the nature of the particular order, the order brings finality to

16 Slade v Slade (1884) 4 EDC 243; Hawkins v Hawkins (1908) 25 SC 784; Swanepoel v Bovey 1926 TPD 457 at 458;
Gillies v Gillies 1944 CPD 157; Cf Naidu v Naidoo 1993 (4) SA 542 (D) at 545G-I where the court held that a committal
order would not be granted to compel a litigant to pay costs on an attorney-and-client scale. See also the remarks of Sachs J
in Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison [1995] ZACC 7; 1995 (4) SA
631 (CC) paras 61-62. Also see Andries Charl Cilliers, Cheryl Loots & Hendrik Christoffel Nel Herbstein and Van
Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5 ed (2009) at 1106-1109.
17 Mulligan v Whitehorn 1922 EDL 81; Bold v Bold 1934 NPD 278; Hughes v Hughes 1936 WLD 98; Williams v Carrick
1938 TPD 147 (in which many of the older cases are collected and referred to); Manley v Manley 1941 CPD 95; Ferreira v
Bezuidenhout 1970 (1) SA 551 (O). See also Bannatyne v Bannatyne (Commission for Gender Equality as Amicus
Curiae) [2002] ZACC 31; 2003 (2) SA 363 (CC) which dealt with contempt proceedings for the enforcement of children‟s
maintenance, a fundamental right contained in s 28 of the Constitution.
18 Hankin v Hankin 1932 WLD 190 at 192.
19 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC) paras 29, 31 and 53; See also Brookstein v Brookstein
(20808/14) [2016] ZASCA 40 (24 March 2016); Simon NO & others v Mitsui & Co Limited & others 1997 (2) SA 475
(W); York Timbers Limited v Minister of Water Affairs & Forestry & another 2003 (4) SA 477 (T).

the lis between the parties; the lis becomes res judicata (literally, “a matter judged”). It changes the
terms of a settlement agreement to an enforceable court order. The type of enforcement may be
execution or contempt proceedings. Or it may take any other form permitted by the nature of the
order.‟ (Footnotes omitted)
The settlement order therefore had the full force of a court order and nothing precluded
the appellant from seeking to enforce it through contempt proceedings as it has done.
Its breach was not merely „as between the parties” and the commissioner was bound to
obey it as long as it had not been set aside by a court of competent jurisdiction.20

[15] The question which then arises is whether the appellant proved that the
commissioner‟s failure to comply with the settlement order amounted to civil contempt
of court, beyond a reasonable doubt to secure his committal to prison.21 An applicant
for this type of relief must prove (a) the existence of a court order; (b) service or notice
thereof; (c) non-compliance with the terms of the order; and (d) wilfulness and mala
fides beyond reasonable doubt. But the respondent bears an evidentiary burden in
relation to (d) to adduce evidence to rebut the inference that his non-compliance was
not wilful and mala fide.22

[16] Here, requisites (a) to (c) were always common cause. The only question was
whether the commissioner rebutted the evidentiary burden resting on him. As indicated
above, the court a quo gave the commissioner an opportunity to file a supplementary
affidavit which would have enabled him to deal with the joint report which
demonstrably established his breaches of the settlement order and all the issues raised
by the appellant in the various affidavits. But he opted not to avail himself of the
opportunity to personally place facts before the Court as to why his non-compliance

20 Clipsal Australia (Pty) Ltd & others v GAP Distributors (Pty) Ltd & others 2010 (2) SA 289 (SCA) para 22; Tasima
(Pty) Ltd v Department of Transport (792/2015) [2015] ZASCA 200 (2 December 2015) paras 16 and 17.
21  Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA (SCA) para 30.

with the settlement order should not be construed as contempt of court. His only
attempt to explain his conduct was to serve and file an unsigned „confirmatory
affidavit‟ without the court‟s leave.

[17] Interestingly, in an affidavit dated 11 May 2011 filed by the commissioner in
one of the proceedings between the parties, he said:
„146. It must never be forgotten that apart from the “COMPSOL” claims the Fund receives on a
daily basis claims from medical practitioners as well.
147. The flood of COMPSOL‟s claims and because priority has to be given to them, the claims
submitted by other medical practitioners suffer. I have suggested earlier that what COMPSOL seeks
to impose, is unconstitutional. COMPSOL seeks preferential treatment and that breaches the equality
clause in the Bill of Rights.
148. When the Minister of Labour, the DG and I committed ourselves to the [settlement order] it
was not revealed to us just how many claims will be submitted at a time nor did we anticipate that
the flood of claims would be a hindrance to the obligations assumed in the court order.‟

[18] The appellant‟s contentions in its founding affidavit that these comments
reflected the attitude of the commissioner and his co-respondents towards its claims
and that the commissioner therefore failed, intentionally, to pay them despite the
settlement order because they were seen as a hindrance, were not denied in Mr
Masalesa‟s answering affidavit in these proceedings. They were merely noted. The
reason for this is not hard to find. The meaning of the comments, which I find startling
in view of the fact that the appellant processes claims, for which the commissioner is
liable under the law, and accordingly submits them to the commissioner for payment, is
quite plain. The respondents clearly viewed the appellant‟s claims as a nuisance and
the settlement order itself one which they could ignore because the obligations it
imposed upon them regarding the manner in which the appellant‟s claims were to be

22 Ibid para 42; Tasima (Pty) Ltd para 18.

paid were unlawful. But then court orders must still be obeyed even if they are
considered to be wrong.23

[19] The respondents advanced an unsubstantiated and unmeritorious allegation, on
an application of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,24  that
there were disputes of fact which could not be resolved on the papers. They also
brought a counter-application challenging the lawfulness of the Advance Payment
Agreement and claiming the repayment of the amounts paid to the appellant. Not
surprisingly, they withdrew this application and were, yet again, mulcted with the
wasted costs.

[20] This narrative starkly shows the commissioner‟s persistent and unexplained
breaches of the settlement order and the flouting of the court a quo‟s directives in the
various proceedings. It shows the utter disdain of the commissioner, a senior state
official entrusted with a vitally important social welfare responsibility and vast public
funds (unnecessarily wasted by his persistently contemptuous conduct), for the court,
its procedures and its orders. The worst affront to the court is that he could not even be
bothered to explain himself why he repeatedly failed to comply with its order. Thus, he
placed no facts before the court a quo establishing reasonable doubt that his non-
compliance with the settlement order was not wilful and mala fide. I can only agree
with the appellant that the commissioner‟s conduct was scandalous and deserving of
the strictest censure possible. It proved its case warranting his committal to prison
beyond reasonable doubt.

22 Tasima (Pty) Ltd, (note 20, above) para 17; Minister of Home Affairs v Somali Association of South Africa (note 20
above) para 20.
24 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

[21] Accordingly, the following order is made:
(a) The appeal is upheld with costs including the costs of two counsel.
(b) Paragraph 1 of the order of the court a quo is set aside and replaced with the
following:
„1 The first respondent, Mr Shadrack Shivumba-Homu Mkhonto, is declared to be in
contempt of paragraphs 1, 2, 5 and 6 of the court order of 31 July 2009 under case
number 35047/2009.
2 The first respondent is accordingly sentenced to undergo three months imprisonment
suspended for a period of five years on condition that he is not convicted of contempt
of court committed within this period.
3 The first respondent is ordered to pay the costs of the application, such costs to
include the costs of two counsel where employed, the costs reserved on 20 August
2013, 5 September 2013, 12 and  18 February 2014 and the costs of attending a
meeting in Johannesburg on 7 August 2014.‟

____________________

MML Maya

Acting President

APPEARANCES
Appellant:
PG Robinson SC (with GW Amm)

Instructed by:

Quiryn Spruyt Attorneys, Port Elizabeth

Honey Attorneys, Bloemfontein

Respondents:
SK Hassim SC (with MA Dewrance)

Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein