THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 57/2019
In the matter between:

THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
FIRST APPELLANT
MOEKETSI EMMANUEL MOSOLA                                  SECOND APPELLANT
and
MOIPONE FLEET (PTY) LTD                                                   RESPONDENT

Neutral citation: City of Tshwane Metropolitan Municipality and Another v
Moipone Fleet (Pty) Ltd (Case no 57/2019) [2020] ZASCA 55
(27 May 2020)
Coram:
CACHALIA, ZONDI and DLODLO JJA and LEDWABA and
MABINDLA-BOQWANA AJJA
Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10
of 2013.
Delivered:
This judgment was handed down electronically by circulation to the parties'
representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed
to be 10h00 on 27 May 2020.
Summary: Contempt of court – alleged contravention not falling within the ambit
of court order – whether contempt of court established.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Mokose AJ sitting
as court of first instance):
The appeal succeeds with costs, including costs consequent upon the
employment of two counsel.
The order of the court a quo is set aside and is substituted with the following:
‘The application is dismissed with costs, including the costs of two counsel.’

JUDGMENT

Mabindla-Boqwana AJA (Cachalia, Zondi and Dlodlo JJA and Ledwaba AJA
concurring)
Introduction
[1] This is an appeal against the judgment and order of Mokose AJ of the Gauteng
Division of the High Court, Pretoria in which she declared the first appellant, the
City of Tshwane Metropolitan Municipality (the City) and the second appellant,
Dr Moeketsi Emmanuel Mosola (the City Manager) to be in contempt of an order
granted by Davis AJ1 (the Davis order) on 29 March 2017. The Davis order had
directed the City to comply with its obligations to procure vehicles under a Public
Private Partnership Agreement (the PPA) concluded between it and Moipone Fleet
(Pty) Ltd (the respondent in this appeal) on 24 March 2016. And further interdicted
it from concluding an agreement to procure vehicles from any other service provider

1 Moipone Group of Companies (Pty) Ltd v City of Tshwane Municipality [2017] ZAGPHHC 149 para 11.

pending the final determination of the dispute between the parties as to whether the
City had validly cancelled the PPA.

[2]     As a sanction for holding the appellants in contempt of the Davis order, Mokose
AJ imposed a sentence of six months’ imprisonment on the City Manager, suspended
for one year on condition that there was no further contravention of that order. She
also interdicted the City from purchasing certain vehicles from any other service
provider other than the Moipone Fleet pending the determination of the dispute
referred to in the Davis order.  On the eve of this appeal Moipone Fleet abandoned
the order relating to the City Manager. It had no doubt became clear to Moipone
Fleet that there was no basis for the contempt finding against him as he had not been
cited as a party in the proceedings before Davis AJ.

[3] The appeal is with the leave of the court a quo and parties agreed to have it
determined in terms of s 19(a) of the Superior Courts Act 10 of 2013 (the Superior
Courts Act).

[4] The issues in this appeal are thus whether the court a quo was correct in
holding the City in contempt of the Davis order and granting the interim interdict
against it. The facts giving rise to the dispute are the following.

Brief facts
[5] On 24 March 2016, pursuant to a tender process for the procurement of fleet
and fleet related services, the City entered into two agreements with Moipone Fleet
to supply and provide it with full maintenance lease and ad hoc rental services of
vehicles. One agreement pertained to the provision of non-specialised vehicles with
a gross vehicle mass not exceeding 3 500 kilograms (Category A vehicles) and the

other concerned large vehicles for waste management services (Category C
vehicles). The duration of each agreement was five years. The PPA that is in issue
in these proceedings relates only to the provision of Category A vehicles.

[6] In terms of clause 7.1 of the PPA the City would make payments to Moipone
Fleet in accordance with a schedule comprising capped specified amounts for each
financial year totalling R352 185 208. That amount would be paid in respect of a
maximum of 1 358 vehicles over the life of the agreement as per clause 7.2. This
amount also represented the budget value of the agreement.

[7] In March 2017, Moipone Fleet launched an urgent application before Davis
AJ, seeking an order, inter alia, compelling the City to comply with its obligations
under the PPA, pending the finalisation of a dispute with it that had been referred to
arbitration. It alleged that the City had refused to accept delivery of a number of
vehicles from it and had, in breach of the PPA, placed orders directly with Moipone
Fleet’s suppliers, instead.

[8]       The City contended that the PPA had lapsed due to the fact that the suspensive
conditions contained in clause 2.1 had neither been fulfilled, nor lawfully waived.
The agreement had therefore lapsed and thus permitted it to deal directly with
Moipone Fleet’s suppliers. Davis AJ, however, found against the City and made an
order which, inter alia, read as follows:
‘1.
The Respondent [the City] is directed to comply with its obligations under the Public
Private Partnership Agreement (“the agreement”) concluded between the Applicant
[Moipone] and the Respondent on 24 March 2016 pending the final conclusion of any
process, application, action or arbitration whereby the validity of the agreement is finally
determined or until such time as the agreement is validly cancelled.

2.
The Respondent is interdicted and restrained from appointing and/or concluding any
agreement with any other service provider for the rendering of the services that the
Applicant is obliged to render in terms of the agreement pending the final determination of
the validity or valid cancellation thereof as aforesaid.’

[9] The City’s application for leave to appeal the Davis order was sought and
dismissed. A further attempt to appeal to this Court was also dismissed, no doubt
because the order was interlocutory and therefore not appealable.

[10] Subsequent to the Davis order further litigation ensued between the parties in
which Moipone Fleet sought to enforce the PPA. The first such application served
before Vuma AJ. Here the City was accused of issuing purchase orders for managed
maintenance of category A and C vehicles in breach of clause 39 of the agreement
and of the Davis order. I deal with clause 39 shortly. Vuma AJ found that the Davis
order required ‘the immediate cessation by the City from dealing with Bulldozer and
Xmoor at the expense of the PPP agreement since anything contrary by the City
seeks to undermine the said order.’2 However the order she granted prohibiting such
dealing was later rescinded for reasons that are not germane to this appeal.

[11] In July 2018 a further urgent application, which is the subject of this appeal,
was brought before Mokose AJ. Moipone Fleet sought a declaratory order that the
appellants were in contempt of the Davis order. Compliance with that order as well
as an interdict was also sought the effect of which would restrain the City from
issuing ‘Purchase orders and/or appointing and/or concluding any agreement with
any service provider. . . pending the final determination of the validity or valid
cancellation thereof. . .’ The complaint in this instance was that the City had

2 Moipone Group of Companies (Pty) Ltd v City of Tshwane Metropolitan Municipality and Another [2017]
ZAGPPHC 1222 para 40.

procured 103 light delivery vehicles (the vehicles) from a service provider other than
Moipone Fleet in violation of clause 39 of the agreement as well as the Davis order.

[12] Clause 39, which lies at the heart of the dispute, is an exclusivity clause in
favour of Moipone Fleet. It provides as follows:
‘39.1 In consideration for the Private Party [Moipone] rendering the Services in terms of this
Agreement, the City shall (save as may be provided expressly to the contrary in this
Agreement), for the duration of this Agreement and during any period of termination notice
given in terms of this Agreement, source all its fleet requirements from the Private Party.
In this regard it is recorded that this exclusivity shall relate solely to the provision by the
Private Party of vehicles which cater for the Function of the vehicles. The City shall
accordingly be entitled to source additional fleet requirements from a third party only if
and to the extent that:
39.1.1 the Contractor is unable to fulfil such requirements in which event the loss of
exclusivity shall apply only to the extent that, and for so long as, the Private Party
cannot perform the particular requirement in question under this Agreement; or
39.1.2  the City is acting in terms of a right granted in terms of the SLA, to source a vehicle
from a Third Party.
provided that the City may, subject to giving the Private Party prior written notice thereof,
undertake the outsourcing of a particular service, an aspect of which may include the
provision of a vehicle provided that:
39.1.3 the main purpose of that outsourcing is to obtain a service and not the
use of a vehicle; and
39.1.4  the outsourcing shall not be used to circumvent the provisions of this
Agreement, in particular the principle that the City shall source all its
fleet requirements exclusively from the Private Party. (Emphasis
added.)’

[13] In response to Moipone Fleet’s allegation that the City was in breach of this
clause, the City maintained that it had purchased the vehicles directly from the

original manufacturer through a transversal contract procured by National Treasury,
to which Moipone Fleet had consented and in which it had participated.
A procurement of this nature was not prohibited by the PPA. According to the City,
the exclusivity for which provision is made in clause 39 applied only to the leasing
of vehicles and matters related thereto. It had no bearing on outright purchases,
which was the subject of the present complaint. It further maintained that it had
exhausted the procurement value limit of R70 125 385 allocated to be spent on
procuring vehicles from Moipone Fleet under the PPA for the 2017/2018 financial
year and that there was no longer a lawful basis to procure new vehicles from it. Any
further procurement of vehicles from Moipone Fleet under the PPA, the City
submitted, would therefore have constituted irregular expenditure and would not
have been cost-effective.

[14] However, Mokose AJ dismissed the City’s submissions and found the
appellants to have acted in contempt of the Davis order. She also granted the interdict
against it referred to earlier. Before the City’s application for leave to appeal against
her order was heard, Moipone Fleet applied to the high court, in terms of s 18 of the
Superior Courts Act, for the immediate operation and execution of the order.  The
matter came before Tuchten J.   He expressed serious doubt as to the correctness of
the interpretation that Vuma AJ and Mokose AJ had placed on clause 39. In his view,
the clause limited Moipone Fleet’s exclusivity to the procurement of leased vehicles
for the City; it did not apply to vehicle’s the City may wish to purchase from any
other service provider. Accordingly, it was entitled to purchase vehicles, without
breaching this clause. He concluded that:
‘The purchase of the vehicles would fall outside the agreement, and would therefore not have been
the subject of the prohibition under the order of Davis AJ, and therefore ought not to have been
the subject of a prohibition by [Mokose AJ] because it was the purchase of vehicles that was before

[Mokose AJ] in the case that came before her. So to summarise on this aspect I think that there are
distinct prospects on appeal.’3

[15] He further questioned, quite rightly in my view, how the City Manager could
have been held to be in contempt of the Davis order and given a suspended sentence
of imprisonment in the light of his defence to the complaint against him. The learned
judge emphasised the trite requirement of proof beyond reasonable doubt before a
prison sentence could be imposed, which was not met in this case.4

Analysis
[16] It is also trite that before a party may be found in contempt of a court order,
the breach must have been both wilful and mala fide.5 The question is whether the
conduct of the City contravened the Davis order.

[17] As I pointed out earlier the issue before Davis AJ was whether suspensive
conditions contained in clause 2.1 of the PPA had been fulfilled. The learned judge
found that they had.  It was on that basis that an interdict was granted prohibiting the
City from appointing other service providers to render the service that Moipone Fleet
was obliged to render pending determination of the dispute about the validity of the
City’s cancellation of the PPA.

[18] In the application before Mokose AJ, Moipone Fleet, broadened the scope of
the dispute that was before Davis AJ. A different issue was raised. Moipone Fleet
was now placing reliance on clause 39 of the agreement, the complaint  being that
by purchasing vehicles from other service providers the City  was ‘sourcing’ its fleet

3 Unreported judgment: Moipone Group of Companies (Pty) Ltd v City of Tshwane Metropolitan Municipality case
number 2018/5 1929 dated 8 November 2018 at 7.
4 Ibid.
5 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 332.

requirements from other service providers in breach of clause 39. It contended that
the words ‘source all its fleet requirements’ encompassed purchases, leases and all
vehicles acquired for use and possession by the City. The City took issue with this
interpretation contending that Moipone Fleet’s exclusivity was limited to the leasing
arrangement.

[19] The conduct complained of before Mokose AJ was clearly not the same as the
issue that served before Davis AJ. On that point alone, the contempt application
should have been dismissed. But a proper interpretation of clause 39 also
demonstrates conclusively that the court a quo erred in the interpretation it gave to
the clause. I examine this issue below after considering whether the interim interdict
she granted against the City is appealable.

[20] The interdict  was almost identical in terms to that which was given by Davis
AJ, the notable difference being the inclusion of purchase orders and sourcing of
Category A and C vehicles from any third party other than Moipone Fleet. Her order
was also made pending the determination of the validity or valid cancellation of the
agreement.

[21]  Interim orders are usually not appealable because they are not final in effect.
This was not an issue raised by either party, but it is important for this Court to deal
with it. In Atkins v Botes this Court held that:
‘[A]n interim interdict is appealable if it is final in effect and not susceptible to alteration by the
court of first instance. The decision also emphasised that in determining whether an order is final
in effect, it is important to bear in mind that “not merely the form of the order must be considered

but also, and predominantly, its effect”. The crucial question in the appeal is therefore whether the
granting of the interim interdict was final in effect.’6

[22] The answer to this would depend on whether the purchase of the vehicles fell
within the scope of the agreement, the validity of which was to be determined at a
later stage. Mokose AJ did not consider this issue at all.

[23] The Court was thus called upon to interpret the reach of clause 39, an issue as
I have pointed out was entirely different from what was before Davis AJ. It is now
established that when interpreting a document, the point of departure is the language
in question read in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.7

[24] Clause 39 is not the clearest of provisions. It must however be read and
understood within the context and scheme of the PPA. It is not disputed that the
procuring of the vehicles from Moipone Fleet was through a leasing vehicle system.
This much is evident from the agreement, starting with the “definitions clause”,
which refers to a ‘full maintenance lease’ and ‘lease agreement’. The preamble refers
to a “co-sourcing mechanism” to achieve the purposes of the agreement.

[25] In interpreting clause 39, regard must be had to the Request for Proposal
document.8 The concept of co-sourcing arose from a recommendation in a study
commissioned by the City to ascertain the most suitable method of undertaking its
fleet services. According to the Request for Proposal document, co-sourcing of fleet

6 [2011] ZASCA 125; 2011 (6) SA 231 (SCA) para 6.
7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012
(4) SA 593 (SCA) para 18.
8 The circumstances in which a contract was entered into may become relevant in the interpretation process in
ascertaining the intention of the parties. See Novartis South Africa (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA
111; 2016 (1) SA 518 (SCA); [2015] 4 All SA 417 (SCA) para 27.

services entails a hybrid situation where some fleet management functions are
undertaken internally whilst others are through the private sector. It says that the
City requires ‘the use and enjoyment of the vehicles with no intention of ownership’.
Some of the objectives for co-sourcing its fleet provision and management were to
develop in-house capacity, ensure transport needs are met and to ensure the City is
divested of the risks and responsibilities relating to owning and maintaining vehicle
fleets.

[26] Moipone Fleet contends that it is within that stated objective that clause 39
should be understood because acquisition of vehicles through means other than the
co-sourced mechanism would undermine the stated objective. According to it, the
relevant clause unequivocally states that the City shall ‘source all its fleet
requirements from the Private Party’ which should be understood to mean all fleet
requirements of the City (without the exclusion of purchasing) would be met by
Moipone Fleet. Its view is that the clause does not concern itself with the method of
how those requirements would be met.

[27] I am unable to agree with this contention. It is not supported by the scheme of
the agreement or even by the Request for Proposal document that Moipone seems to
rely on. Nothing in clause 39 read in the context of the agreement indicates that the
City was prohibited from purchasing vehicles from other suppliers. The fact that it
had found co-sourcing in the form of a leasing arrangement to have been a cost
effective mechanism at the time, did not mean that it could not embark on other cost
effective methods to source its fleet requirements, including purchasing of its
vehicles. To illustrate this point it is alleged on behalf of the City that when it
purchased the vehicles from the original manufacturer it spent R239 000 per vehicle,

including maintenance, whereas to lease a vehicle would have cost over R420 000
per vehicle, over a five year period.

[28] Tuchten J’s observation that the purchase of vehicles fell outside the purview
of the agreement was undoubtedly correct. Under the circumstances, it is evident, in
my view, that Mokose AJ’s interim order was final in effect because the purchase of
the vehicles, which her order prohibited, was not an issue that would be revisited
when the validity of the agreement was determined at a later stage.  The interim
interdict is thus appealable. Based on my interpretation of clause 39, it should not
have been granted.

[29] In light of that, it is not necessary to deal with the other issues raised on behalf
of the City, including the point that it would have exceeded its procurement value
limit for the financial year or would have been guilty of irregular expenditure had it
procured the vehicles from Moipone Fleet. It is also not necessary to deal with other
grounds as to why wilful and mala fide contravention of the Davis order was not
established.

[30] In the result, I make the following order:
The appeal succeeds with costs, including costs consequent upon the
employment of two counsel.
The order of the court a quo is set aside and is substituted with the following:
‘The application is dismissed with costs, including the costs of two counsel.’

__________________________
N P MABINDLA-BOQWANA

ACTING JUDGE OF APPEAL

Written submissions

For appellants:
K Tsatsawane SC, with K Magano and C Marule

Instructed by:
Gildenhuys Malatji Inc, Pretoria
Matsepes Attorneys, Bloemfontein

For respondent:
Main heads of argument by M Sello SC
Supplementary heads of argument by D Mpofu SC, with him
M Sello SC and M Qofa

Instructed by:
Van Zyl Le Roux Attorneys, Pretoria
Phatshoane Henney, Bloemfontein