The Legal Shield: When is Legal Advice a defence against contempt of court allegations?

Attorneys get a bad rap in no small part because some of their numbers are disposed, by hubris or an itchy palm (Harvey Specter, I’m looking at you), to lock horns, obfuscate and wrangle over the fine print in a battle of wills that squanders more time and money than it saves. But attorneys aren’t apples, a few bad ones don’t spoil the bunch, for there are also principled practitioners whose unflappable counsel can make all the difference. This is particularly true for a client who seeks legal advice after being accused of contempt of court.

It is a fundamental principle of our law that all orders of court, whether correctly or incorrectly granted, must be obeyed until set aside. In civil proceedings, contempt of court consists in the wilful and mala fide refusal or failure to comply with an order of court other than a money judgment. Civil contempt, or contempt of an order flowing from civil proceedings, is itself a criminal offence and the court is empowered to order committal i.e. imprisonment for disobedience of a court order.

In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), the court held that whenever committal to prison for civil contempt is sought, the criminal standard of proof applies. In this regard, the applicant for a committal order must establish (a) the existence of the order; (b) service or notice of the order on the respondent; (c) non-compliance with the terms of the order and (d) wilfulness and mala fides, beyond reasonable doubt.

Once the applicant has proved (a), (b) and (c), the respondent bears an “evidentiary burden” in relation to (d), that is, the respondent must advance evidence that establishes a reasonable doubt that the failure to comply was neither wilful nor mala fide, failing which the applicant will have proved contempt beyond a reasonable doubt.

In Fakie NO, Cameron JA (as he then was) explained the nature of the fourth requirement – (d) above - as follows:

The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide’. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him- or herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

In other words, a person accused of civil contempt may show that even if his or her non-compliance with a court order was deliberate or wilful, it was nevertheless bona fide. And one of the ways in which one may do so, as our courts have accepted, is by proving that one relied on legal advice to the effect that one’s conduct was not in breach of the court order, as alleged. Crucially, as the court held in Moyo v Old Mutual Limited and others [2022] 3 All SA 795 (GJ), the question is not whether the legal advice was correct or incorrect, but whether the reliance thereon is sufficient to negate the inference of mala fides.

In determining whether reliance on legal advice is a proper defence (in that it negates the inference of wilfulness or mala fides), our courts have established the following principles:

– It is incumbent on a party raising the defence of legal advice to set out all the relevant
circumstances under which it was given. In motion or application proceedings, these facts must be
set out on affidavit.

– If the circumstances reveal any equivocation, hesitance or non-commitment on the part of the legal
practitioner, in that the attorney concedes his advice offers no guarantees, or is held ‘rightly or
wrongly’, and the respondent is aware, in light of the terms in which the advice is couched, that
acting in accordance with the advice might constitute a breach of the order, but nevertheless
proceeds to so act, intention in the form of dolus eventualis (hence, willfulness and mala fides)
is accordingly to be imputed to him.

– The mere allegation that legal advice was sought cannot, without more, be said to establish a
reasonable and honest belief that the impugned conduct was permissible and not in breach of the
court order. Although an objectively unreasonable belief may nevertheless be bona fide, the degree
of unreasonableness may evidence a lack of bona fides.

– The court must be satisfied that the advice was given on a full and true statement of the facts by
the client. In this regard, there must be evidence of the nature of the advice sought, the terms of
the advice, and by whom it was given. Whether sufficient detail has been provided in support of a
defence of legal advice is, ultimately, a question of fact.

While soliciting legal advice doesn’t automatically absolve one from the potential consequences of breaching a court order, evidence of the circumstances, nature and terms of the advice, even if ultimately incorrect, may suffice to establish a proper and honest reliance thereon, and constitute a complete defence to allegations of civil contempt.