Bloemfontein – “It is indeed the lofty and lonely work of the judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs.” ~ ACJ Sisi Khampepe
The National Treasurer of the African National Congress Women’s League (ANCWL) and Free State Premier, MaQueen Joyce Letsoha-Mathae would on Thursday, September, 05 2024 appear before the Free State High Court, Bloemfontein in a Hybrid (Civil & Criminal) contempt of court order, application that would be prosecuted by the Department of Human Settlement, Free State HOD: Mosa Masitha-Masimene.
Contempt of court applications although prosecuted by private bodies are tipped not to be Civil nor Criminal{Crime of disrespecting the court} in nature instead instead are believed to be unique with both identities (Civil – Criminal identity), as such should not be misconstrued to be an inter-party (parties before the court) application but that of the contemnor and the court.
Contempt proceedings seek to protect the court’s integrity, dignity, authority and further, to vindicate the rule of law and constitution.
The courts have since accepted the three (3) grounds test for contempt proceedings, which the applicant who alleges contempt of court must successfully establish in order to secure an order in that regard:
- An order was granted against the alleged contemnor – indeed an interim order was issued on August, 08 2024 and further confirmed on August, 16 2024 by the Free State High Court against Premier MaQueen Letsoha-Mathae & Adv Tumelo Phahlo in favour of the applicant Mosa Masitha-Masimene.
- The alleged contemnor was served with the order or had knowledge of it – it is proven that the applicant solicited services of the Sheriff to serve both the application and the interim order to the respondents including the State Attorney. The interim order was broadly shared on different social media platforms (WhatsApp, Facebook, Telegram) to prove somehow the respondents as active participants in those social media platforms may have come across it.
- The alleged contemnor failed to comply with the order – worse both respondents made adverse commentary with regard to the order with Premier threatening the applicant against her continued defiance of the defunct transfer through his immediate supervisor MEC: Saki Mokoena and 2nd Respondent, Phahlo issuing an internal memo to DOHS staff confirming his appointment as the new HOD for the said department on August, 13 2024 days after the order was issued by the court.
The applicant won’t have trouble to establish the three required elements for contempt proceedings, as such wilfulness and mala fide (bad faith) would be presumed on the part of both respondents in this matter which will rightfully so shifts the evidentiary burden to establish grounds for reasonable doubt to both Mathae and Phahlo.
However, in determining the appropriate sanctions for the two respondents the court would zoom into their conduct pre and post confirmation of the order on August, 16 2024.
It is understood that Mathae is yet to retract her July, 31 2024 letter transferring HOD: Masemene to comply with the order of the Court even today, a day before the hearing of Thursday, September 05 2024, instead she impliedly communicated her decision of having had returned Phahlo to DSD when she appointed Ms. N Ntombela as DSD acting HOD for a period between August 23 to September 20 2024.
Premier MaQueen Letsoha-Mathae has despite having knowledge of the order confirmed in August, 16 2024 as outlined in granted relief one of the Court order and pending contempt litigation of September, 05 2024 as outlined in granted relief three of the said order, continues to undermine the court order as confirmed, with her continued failure to formally retract the July, 31 2024 transfer letter of HOD: Mosa Masitha-Masimene from DOHS to DSD.
Furthermore, Premier’s decision to place Phahlo on a month long leave between August, 23 2024 to September, 20 2024 immediately after HOD: Mosa Masitha-Masimene successfully nullified their HOD inter – transfers between DSD and DOH, leaves much to be desired, hopefully this is not yet another misguided and/or ill-informed advise that would see her suspending HOD: Mosa Masitha-Masimene upon conclusion of this contempt proceedings, which will technically undermine the courts role and ultimately the country’s Constitution, save to point courts deal with live matters not hypothetical issues.
It is my fervent view that both the respondents have somehow earned themselves Punitive sanctions of direct imprisonment by the court.
Both respondents demonstrated a total disregard of the court order and/or authority of the court and were resolute in undermining it at least until after a huge public pressure on different social media platforms and mainstream (Local & National) media coverage, that suggested imminent application of ANC step-aside rule on the Premier.
Thus, it is impossible to see the court issuing a coercive order that would achieve any of the purpose of the contempt proceedings, neither the Court’s integrity, dignity and authority going forward.
Zwelakhe Msabe is the governance monitoring manager at African Alliance for Social Democrats (AASD), he writes in his personal capacity.
He was also gagged by the court Zwalakhe