Background and context
In the matter of Special Investigating Unit (SIU) v Zakheni Strategic Supplies (Pty) Ltd and Others, the Special Tribunal was asked to declare Zakheni Strategic Supplies (Pty) Ltd (“Zakheni”) in contempt of a Tribunal court order dated 29 June 2022. The order required Zakheni to provide the Tribunal and SIU with relevant audited financial statements and documents within a prescribed period and make payment of certain amounts to the SIU within 60 days of demand. The SIU also sought an order directing the South African Police (SAPS) to arrest Zakheni’s sole director, Mr Thembile Sangoni (“Sangoni”).
The SIU alleged that Zakheni and Sangoni wilfully disregarded the 29 June 2022 order, showing an intention to evade their legal obligations. Instead of complying or seeking a lawful stay, they filed a separate review application in the Gauteng High Court within one month after the court order was issued.
According to the SIU, their refusal to comply was deliberate and aimed at defying the Tribunal’s authority. The SIU argued that the continued non-compliance, despite explicit notification, repeated reminders, and a concession, demonstrated a wilful, mala fide disregard for their obligations in terms of the order.
Judgment of the Special Tribunal
Judge Petersen considered the legal requirements for contempt of court applications, noting that an applicant seeking a committal order had to prove:
- a court order.
- service or notice of the court order.
- non-compliance with the court order; and
- wilfulness and mala fides.
The issues in dispute were non-compliance and wilfulness/mala fides.
Judge Petersen emphasised that contempt of court undermines the authority of the judiciary, impacting directly on the effectiveness of its orders. Civil contempt constitutes a criminal offence and is ordinarily accompanied by a criminal sanction. The standard of proof is therefore beyond a reasonable doubt. (The requisites that the applicant must show are well known: the existence of an order; service or knowledge of the order; non-compliance with the order; and wilfulness and malice beyond a reasonable doubt.) Once the first three requisites are established, the respondents bear an evidential burden to show a lack of wilfulness or mala fides. If they fail to raise a reasonable doubt, contempt will be established.
In this case, Judge Petersen found that the SIU’s papers did not prove wilfulness and mala fides beyond a reasonable doubt. The contempt application was also brought almost three years after the original 2022 order, suggesting no urgency in enforcement. Furthermore, there appeared to be no prejudice to the SIU’s mandate to recover funds for the fiscus while the review application was pending.
Judge Petersen therefore dismissed the application for contempt of court.
Timeline of Events
| Date | Event |
|---|---|
| 29 June 2022 | Tribunal orders Zakheni to submit financial records within 30 days and make payment within 60 days of the SIU’s written demand |
| 28 July 2022 | Zakheni and Sangoni file review application in Gauteng High Court |
| 2025 | SIU launch contempt of court application in Tribunal |
| 3 June 2025 | Tribunal hears contempt of court application |
| 23 July 2025 | Judgment handed down |
Conclusion
This judgment reinforces the principle that compliance with court orders is essential to maintaining judicial authority. It highlights the high evidentiary standard, proof beyond a reasonable doubt, for establishing civil contempt, particularly regarding wilfulness and mala fides.
It also serves as a cautionary example of the risks of delay in enforcement. In this matter, the SIU brought the contempt application almost three years after the original order, undermining the urgency of the claim. Without sufficient evidence and prompt action, even well-founded concerns over non-compliance may fail in court.