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Koontse and Another v Motsume and Others (Civil Appeal No. 36 of 204) [2005] BWCA 10; [2005] 1 B.L.R. 63 (CA) (28 January 2005)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No 36/2004 High Court Miscellaneous Civil Application No. F99/2003
In the matter between:
First Appellant Second Appellant
MPEDI T. KOONTSE KGOTLA AUTLWETSE
And
KELEBONYE MOTSUMI AND OTHERS     Respondents
Mr. G. G. Komboni for the Appellants Mr. S. Thapelo for the Respondents
JUDGMENT
CORAM: ZIETSMAN JA GROSSKOPF JA McNALLY JA
GROSSKOPF ]A:-
The first appellant is the secretary and the second appellant the chairman of the Central District Council ("the council"), a duly established local authority. I shall refer to the first appellant as "the secretary" and to the second appellant as "the chairman".

On 6 December 2002 the council passed a resolution to close a school known as Western Primary School ("the school"). Following representations the Minister of Local Government thereafter directed that the school be reopened and that the council allow a wider consultation with various stakeholders. Consultations were held and the council concluded that the majority of interested parties agreed with the proposed closure of the school. The secretary then notified the Principal Education Officer and other officials by means of a savingram dated 10 April 2003 that the chairman had directed that the school be closed at the end of the term and that the Masilo Primary School ("the new school") would be opened at the beginning of the next term. The headmaster of the school informed the parents that their school had been closed and that they should relocate their children to the new school or elsewhere. Most of them did so.
On 12 May 2003 the present respondent, Kelebonye Motsumi, and one Johnson Madani brought an urgent application "the main application" in the court a quo. They were both parents of pupils who had previously attended the school. They applied for a rule nisi to issue calling upon the chairman as first respondent and the council as second respondent to show cause on or before 23 May 2003 why they should not be ordered, inter alia, to reopen the school forthwith. The court a quo issued a rule nisi accordingly on 12 May 2003 ("the order of 12 May 2003").
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The secretary filed an answering affidavit in the main application on behalf of the council on 22 May 2003 and the chairman confirmed the contents of that affidavit. They opposed confirmation of the rule.
Before the main application was considered by the court a quo on 3 June 2003 the present respondent, Kelebonye Motsumi, brought a second urgent application ("the contempt application") on 23 May 2003, citing the secretary as first respondent and the chairman as second respondent. The contempt application was for an order committing the secretary and the chairman to prison for contempt of court in that they had wilfully disobeyed the order of 12 May 2003.
The secretary filed an answering affidavit in the contempt application on 27 May 2003 on behalf of himself and the chairman. He disputed that he and the chairman had wilfully failed to comply with the order of 12 May 2003. His affidavit sets out the difficulties which they encountered in complying with certain aspects of the order of 12 May 2003 as well as their inability to comply with other aspects thereof. No replying affidavit was filed by or on behalf of the applicants in the contempt application and the averments of the secretary in his answering affidavit therefore stand uncontroverted.
The court a quo considered the contempt application before the main application. The court held on 3 June 2003 that the secretary and the chairman had deliberately disregarded the order of 12 May 2003 and found them guilty of
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contempt of court. The court a quo imposed a fine of PI 000.00 on each of them. The fine had to be paid within five days, failing which they were to be placed in custody for 30 days. The court a quo further ordered them to bear the costs on the scale as between attorney and own client. They appealed to this court against their conviction and sentence as well as the cost order.
I might mention in passing that the officially signed court order of 3 June 2003 in the contempt application wrongly refers in its heading to the chairman and the council as the respondents in that application. Paragraph 1 of the order further wrongly records that the "applicants" were found guilty of contempt of court.
It is necessary to set out the order of 12 May 2003 in full in order to determine whether the appellants have in fact failed to comply with its terms, as found by the court a quo. The order of 12 May 2003 reads as follows: "IT IS HEREBY ORDERED THAT:
 1.      The matter be treated as one of urgency.
2.     
A rule nisi is hereby issued calling upon the respondents to show cause, if any, on or before the 23rd May 2003, why it should not be ordered that:

a)     
The respondents should forthwith reopen Western Primary School and restore all facilities necessary for the school to continue operating.
b)     
The respondents be restrained, prohibited and interdicted from interfering with the operations of Western Primary School in a manner which would adversely affect the operations of the school, pending the resolution of this matter.
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c)     
Paragraphs (a) and (b) of the Rule Nisi are to operate as an interim interdict.
d)     
The decision of the 1st respondent closing Western Primary School be reviewed, corrected and or set aside for being ultra vires.
e)     
The decision of the 1st respondent closing Western Primary School be and is hereby declared null and void, ab initio, on account of failure to adhere to the principles of natural justice.
f)     
Directing the 2nd respondent, together with such of the respondents as may oppose this application, who shall be liable jointly and severally with the 2nd respondent, to pay the costs thereof on the scale 3$ between attorney and own client.
g)     
The respondents are at liberty to anticipate the return date on 24 hours notice to the applicants."
Strictly speaking the chairman and council as respondents were not ordered to do anything forthwith or to refrain from doing anything. They were merely called upon to show cause on or before 23 May 2003 why they should not be ordered, inter alia :
 (a)    
to reopen the school, and
 (b)     to refrain from interfering with the operations of the school.
They were further called upon to show cause on or before 23 May 2003 why there should not be a so-called "interim interdict" in terms of paragraph (c). It should be pointed out that paragraph (c) was part of the rule nisi. The interim order was therefore not a separate order with immediate effect.
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The secretary was concerned that an interim order had been granted before they
had the opportunity to show cause why the order should not be made. He
expressed his concern as follows in paragraph 5 of his answering affidavit in the
contempt application:
"However I state that the court order referred to is in the form of an interim order which was granted before the respondents filed their affidavits in opposition and calling upon the respondents to show cause why the order should not be made final. I state that the respondents in the main application had done so by filing answering affidavits."
Whatever the intention of the court a quo might have been, and irrespective of how the order of 12 May 2003 might have been explained to or understood by the chairman and secretary on behalf of the council, it is clear from the wording of the order of 12 May 2003 that the interim order did not require the chairman and council to reopen the school forthwith. They still had the opportunity to show cause why there should not be an interim order in terms of paragraph (c) of the order of 12 May 2003. The chairman and council were therefore strictly speaking not obliged to do anything until the rule had been confirmed. On this basis they were not disobeying any order of the court a quo when the contempt application was launched on 23 May 2003 or when the court a quo found them guilty of contempt on 3 ]une 2003. Their appeal should accordingly succeed on this basis alone.
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The above approach might however be too formalistic, especially where the secretary and the chairman regarded the interim order as one which they were obliged to obey with immediate effect. I shall therefore also deal with the matter on the basis that the interim order was indeed meant to be and also understood to be an order with immediate operation. Once that is accepted it can be argued that the interim order was incorrectly made since it would then in effect be a final order to reopen the school, coupled with a final interdict, without even hearing the chairman and council as respondents. That part of the order of 12 May 2003 which provided that the chairman and the council could still show cause why they should not be ordered to reopen the school in terms of prayer (a), and why they should not be interdicted in terms of prayer (b), would then be meaningless. But even if it be accepted that the order of 12 May 2003 was incorrectly made it would still be of no assistance to the chairman and council since all orders of the court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside. (See CulverweU v Beira 1992 (4) SA 490 (W) at 493 H - 494 B).
The remaining question is whether the council and its chairman have substantially complied with the order of 12 May 2003, and if not fully, whether they have rebutted the inference that they have wilfully disregarded the order of 12 May 2003. Their main obligation was to reopen the school forthwith and to restore all facilities necessary for the school to continue operating.
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The applicants in the contempt application were Kelebonye Motsumi, the applicant who brought the main application, and Kgalalelo Sedimo, the only remaining teacher at the school. Ms Sedimo alleged in her founding affidavit that since the grant of the order of 12 May 2003 until 19 May 2003 she registered 297 pupils at the school. Yet according to her breakdown of pupils into seven classes there were only 101 pupils on 19 May 2003. She further alleged that all these classes were without teachers while all the toilets, classrooms and other buildings were locked. According to her affidavit there were no food for the children or teaching material. She can not, however, rely on what she had been advised by the applicants' attorneys in this connection.
The other applicant, Ms Motsumi, confirmed what Ms Sedimo had set out in her founding affidavit. She further added that she visited the school on a daily basis but that "for all intents and purposes7' the school remained closed.
The secretary in his answering affidavit set out that he and the council's driver went to the school on around 14 May 2003 to assess the facilities required. He found that there were about 23 pupils of different classes at the school occupying three classrooms. The deponent, Ms Sedimo, was sitting outside. There were a large number of people whom he believed to be parents. Some of those people threatened to throw stones at them and they left. He was advised by the council's attorneys to get in touch with the Education Officer responsible for the school to assist in determining the standards of those pupils who had gone back to the school
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after the order of 12 May 2003. This had to be done in order to determine the number of teachers they required at the school. He was further advised to ask the Education Officer to provide the required number of teachers since the council did not have the power to assign teachers to schools. The council therefore did not have the power to recall those teachers who had been assigned to the new school where 217 pupils had been enrolled.
The secretary further explained that the council was faced with the predicament of operating both schools on the budget of one school. The secretary also mentioned that the council had limited resources in terms of personnel and that they could not forthwith fully comply with the order of 12 May 2003. He maintained however that he as secretary was doing all he could within the council's means to comply with the order.
The secretary conceded that there were no cooks at the school but explained that they had all been moved to the new school. The council was, however, in the process of trying to obtain funds in order to employ temporary cooks. The secretary however denied that all the classrooms, toilets and buildings were locked, as alleged by Ms Sedimo.
The council had restored some teaching material at the school following the order of 12 May 2003. The secretary pointed out that the deponent, Ms Sedimo, was supposed to make a requisition for stationery once the number of pupils at the
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school had increased. He explained that the school's equipment, stationery and teachers had all been relocated to the new school, but that the council in the meantime managed to provide some spare chairs and tables which the council had available at the school.
The secretary maintained that the disadvantage the pupils were suffering at the school was not as a result of any deliberate acts of the council to disobey the court's order of 12 May 2003, but as a result of the circumstances following upon the relocation to the new school. The secretary in conclusion reiterated that the council was doing all within its power to comply with the order of 12 May 2003.
It should be pointed out again that the applicants in the contempt application failed to file any replying affidavits with the result that the secretary's allegations stand uncontroverted.
In Clement v Clement 1961 (3) SA 861 (T) the court held at 866 A that "before a person can be found guilty of contempt of Court his disobedience of the order must be, not only wilful, but also mala fide". But once the failure to comply with an order of court has been established, wilfulness will be inferred. The onus will then rest on the person who failed to comply with the order to rebut the inference of wilfulness on a balance of probabilities. This inference may be rebutted by evidence establishing that the court's order was not intentionally disobeyed. Proven inability to comply with the court's order also affords protection against a
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committal for contempt. (Putco Ltd v TV and Radio Guarantee Co. (Pty) Ltd. 1985 (4) SA 809 (A) at 836 D - E; Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa, 4th ed. (1997) at 819 and 826.)
In my judgment the secretary has succeeded in rebutting the inference of wilfulness on their part on a balance of probabilities. He showed that the council was in many respects unable to comply with the order of 12 May 2003 without the assistance of the Education Department and that the order was therefore not intentionally disobeyed in that respect. It should also be borne in mind that the council did not have unlimited funds and personnel at their disposal. Where the council was able to comply with the order of 12 May 2003 it did so. In these circumstances the chairman and secretary should in my view not have been found guilty of contempt of court and their appeal should accordingly be upheld.
The order of this court is as follows:
 1.      The appeal is upheld with costs.
 2.      The order of the court a quo of 3 June 2003 in the contempt of court application is set aside and the following order is substituted:
"the application is dismissed with costs."
DELIVERED IN OPEN COURT AT LOBATSE THIS 28th DAY OF JAUNRY
2005.   

F. H. GROSSKOPF JUDGE OF APPEAL
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agree
N. W. ZIETSMAN JUDGE OF APPEAL
I agree
N.J. McNALLY JUDGE OF APPEAL
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