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[2021] ZAWCHC 112
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Department of Environmental Affairs, Forestry and Fisheries v B Xulu & Partners Incorporated and Others (6189/2019) [2021] ZAWCHC 112 (7 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
6189/2019
In
the matter between:
THE
DEPARTMENT OF ENVIRONMENTAL AFFAIRS,
FORESTRY
AND FISHERIES
Second
Applicant
and
B
XULU & PARTNERS INCORPORATED
First Respondent
INCOVISION
(PTY) LTD
Second
Respondent
(Reg
No: 2017/157169/07)
SETLACORP
(PTY) LTD
Third Respondent
(Reg
No: 2017/21874/07)
FIRST
NATIONAL BANK OF SOUTH AFRICA
Fourth Respondent
BARNABUS
XULU
Fifth Respondent
INVESTEC
BANK
Sixth
Respondent
REGISTRAR
OF DEEDS, PIETERMARITZBURG
Seventh
Respondent
REGISTRAR
OF DEEDS, CAPE TOWN
Eighth Respondent
In
re:
THE
DEPARTMENT OF AGRICULTURE,
FORESTRY
AND FISHERIES
First Applicant
THE
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS,
FORESTRY AND FISHERIES
Second
Applicant
and
B
XULU & PARTNERS
INCORPORATED
First
Respondent
THE
SHERIFF OF THE HIGH COURT
FOR
PRETORIA CENTRAL, MR TF SEBOKA N.O.
Second
Respondent
STANDARD
BANK OF SOUTH AFRICA
Third
Respondent
FIRST
NATIONAL BANK OF SOUTH AFRICA
Fourth Respondent
BARNABUS
XULU
Fifth Respondent
Hearing dates: 20
and 21 May 2021 via Teams
Judgment
date: 7 June 2021 (delivered via email to the parties’ legal
representatives)
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
PANGARKER,
AJ
1.
On 4 May 2021, I granted the following orders in a contempt of court
application
against the first and fifth respondents
(the
respondents)
, who apply for leave to appeal that judgement
(the
main judgment)
. The parties are referred to herein as in the main
judgment.
Orders
In
the result, I grant the following orders:
1.
It is declared that the first respondent, B Xulu and Partners
Incorporated (BXI)
is in contempt of the following orders granted under case number
6189/19:
1.1
paragraphs 3.2.1 and 3.2.3 of the order granted by Rogers J on 21
August 2019;
1.2
paragraph 144 (e) of the order granted by Rogers J on 30 January
2020;
1.3
paragraphs 1 and 3 of the order granted by Smith J on 5 October 2020.
2.
It is declared that the fifth respondent, Mr Barnabas Xulu (Mr Xulu),
in his
capacity as director of the first respondent and personally is
in contempt of the following orders granted under case number
6189/19:
2.1
paragraph 4.1.6 of the order granted by Smith J on 12 October 2020 as
amended on 15 October
2020;
2.2
paragraphs 6 and 7 of the order granted Binns-Ward J on 25 November
2020;
2.3
paragraph 4 of the order granted by Binns-Ward J on 27 November 2020.
3.
The first and fifth respondents are ordered to pay a fine of R30 000
jointly
and severally, the one paying the other to be absolved,
by
no later than 12h00 on Friday 7 May 2021
, such fine being payable
at the office of the Registrar of this Court. Failing such
compliance, the fifth respondent is sentenced
to 30 days’
imprisonment.
4.
The fifth respondent is ordered to surrender the Porsche 911 Carrera
with registration
number CA 3302 (the Porsche)
by no later than
12h00 on Friday 7 May 2021
to the sheriff or deputy sheriff of
Cape Town, or any other sheriff in whose area of jurisdiction the
Porsche is found/located,
for safekeeping by the sheriff, Cape Town,
pending finalisation of the remaining matters (including appeals)
under case number
6189/19. Failing compliance with this order, the
fifth respondent is sentenced to 30 days’ imprisonment.
5.
The fifth respondent is sentenced to 30 days’ imprisonment,
wholly suspended
for 3 (three) years on condition that he is not
again committed for contempt of Court in case number 6189/19,
committed during
the period of suspension.
6.
The first and fifth respondents are precluded from launching any
further applications
against the applicants in relation to any
matters involving, relating to or arising from the disputes and
judgments under case
number 6189/19, unless and until they have
purged their contempt as set out in the preceding paragraphs. This
order (paragraph
6) does not apply to pending matters before Zilwa J.
7.
The first and fifth respondents are ordered to pay the second
applicant’s costs
on an attorney and client scale and such costs shall include
the
costs of two counsel where so
employed.
8.
A copy of this judgment shall be forwarded to the Legal Practice
Council, Western
Cape, for its information and attention.
2.
The leave to appeal application was due to be heard virtually on
Microsoft Teams
on 20 May 2021 but was eventually heard the next day.
The respondents were represented by different counsel, Mr Shai of the
Pretoria
Bar, while the DEA (
second applicant
) was once more
represented by Ms Bawa SC, on instruction of Mr Manuel of the State
Attorney, Cape Town.
3.
Paragraphs 3 and 4 of the orders were to have been complied with by
12h00 on
Friday 7 May 2021. On 6 May 2021, Mr Xulu addressed a letter
directly to me, emailed to my registrar and including Mr Manuel,
which
I summarise as follows: the letter was marked as “
urgent”
and “
private and confidential”
(on page 2 of the
letter), referring to the main judgment; at paragraph 2 thereof Mr
Xulu reserves his and his practice’s
(BXI)
rights of
appeal and enquires from me as to how I envisage that the fine
of R30 000 (paragraph 3 of the order) would be paid
to the registrar
of this Court, as it is common cause that his and BXI’s bank
accounts were frozen in accordance with orders
granted under case
number 6189/19, which has rendered him unable to transact and unable
to generate revenue and collect fees for
services rendered. He
requested and would appreciate my urgent reply while considering his
options prior to the payment deadline
the next day, 7 May 2021 at
12h00. The letter was signed by Mr Xulu as director of BXI. There was
no mention of Ndumiso Attorneys
which represented the respondents in
the contempt application. While I found a letter addressed to me
directly and marked “
private and confidential”
quite surprising, as a matter of courtesy and decency, I requested
the registrar to send an email to Mr Xulu informing him that
I am
functus officio
in respect of the judgment delivered on 4 May
2021. Mr Manuel was included in the email.
4.
Not unsurprisingly then on 7 May 2021 at 11h45, 15 minutes before the
dreaded
12h00 deadline to pay the R30 000 fine and surrender the
Porsche, a Notice of Application for Leave to Appeal and Rule 45A
stay of execution were served on my registrar. On reading the
documents, I noticed that the document which purported to be an
affidavit of Mr Xulu in support of both applications was not signed
by him as the deponent and not commissioned by a Commissioner
of
Oaths as required by the Regulations governing the administration of
an Oath or Affirmation. The registrar communicated proposed
dates for
the hearing of the applications and pointed out that the document was
neither signed nor commissioned. The date of 20
May 2021 at 09h00 for
hearing of the leave to appeal and Rule 45A applications was
confirmed. On Monday 10 May 2021, I received
Mr Xulu’s signed
and properly commissioned affidavit.
5.
As has become par for the course in this matter, there ensued further
developments
prior to the hearing of the leave to appeal application
at 09h00 on 20 May. At 08h30, a half hour before the Teams hearing in
the
leave to appeal, my registrar handed me an email addressed by Mr
Ndumiso and sent at 19h10 to the Judge President’s registrar
on
19 May 2021. The email copied in the DEA’s legal
representatives, Mr Shai, and my registrar, and referred to an
attached
letter addressed for the Judge President’s urgent
attention. The letter referred to a petition brought by Mr Xulu and
BXI
in terms of rule 49 (18), requesting the Judge President to
direct that all proceedings in case number 6189/19 be halted and be
referred to the Judicial Services Commission (JSC). The letter
indicates further that the substantive reasons are contained in
the
petition and that the leave to appeal (in respect of my judgment) is
also implicated in the petition. Mr Ndumiso requested
that the leave
to appeal should await the Judge President’s decision on the
petition and that the submissions were made on
his understanding of
rule 49(18).
6.
After reading the letter and email, and shortly before 09h00, on my
request,
the registrar addressed an email to the Judge President's
registrar, including all the legal representatives in the leave to
appeal,
and indicated that I had received Mr Ndumiso’s email
and his attached letter to the Judge President and awaited further
direction
in respect of the respondents’ (Mr Xulu and BXI)
petition. At 09h00, the Teams meeting commenced, duly recorded. I
placed
on record my receipt of the letter at 08h30, the
registrar’s email to the Judge President’s registrar and
enquired whether anyone had received an outcome/feedback regarding
the petition. Mr Shai indicated that a petition was indeed filed
and
proceeded to place on record how the matter had been handled, the
implication for his clients of the orders which I had granted
and
that they await the direction of the Judge President regarding the
petition. Ms Bawa stated that she had not seen the content
of the
letter nor the petition and submitted that the matter before me was
not an appeal but a leave to appeal application and
that in her view
rule 49 (18) does not apply. She submitted that I was still seized
with the leave to appeal application. Mr Shai’s
submission was
that I was required to wait for the Judge President's direction. I
enquired pertinently as to Mr Shai’s instructions,
to which he
responded that as there were constitutional issues involved, the
outcome of the petition and the Judge President's
directions were
quite important.
7.
After considering counsels’ submissions, I took a brief
adjournment during
which time I determined from the registrar that at
that stage, there was no response from the Judge President’s
registrar.
When the meeting resumed, I placed this fact on record and
postponed the leave to appeal application to 2 June 2021 for virtual
hearing. The legal representatives were requested to update me should
there be an outcome regarding the petition, and everyone
exited the
hearing. At 09h44, the Judge President's registrar informed per email
that the Judge President cannot intervene in the
matter – all
the legal representatives were included in this email. Shortly
thereafter Mr Manuel requested that I hear the
leave to appeal
application that same day (20 May), however, as I had an opposed
application (three applications) due to commence
at 11h00, I was not
available. The virtual hearing of the leave to appeal and rule 45A
applications was confirmed for Friday 21
May 2021 at 10h00.
8.
On 21 May, I heard argument on the leave to appeal application and
reserved judgment
until today 7 June 2021. Yet again, there are
further developments. On Friday afternoon (4 June 2021), while I was
out of chambers
during lunch, my registrar received an email from Mr
Ndumiso, which was also addressed to Mr Manuel and includes Mr Xulu.
The email
refers to a supplementary affidavit of Mr Xulu; yet, aside
from a filing notice, no such affidavit was attached as it seems that
it was blocked by the Judiciary and Department of Justice servers (Mr
Manuel had also reported the same problem). This morning,
shortly
after 09h00, I received from my registrar, Mr Manuel’s
affidavit in response to Mr Xulu’s affidavit referred
to above.
At that stage, Mr Xulu’s affidavit had still not been emailed
nor delivered to my registrar. It caused me to request
of the
registrar to contact Mr Ndumiso telephonically to provide Mr Xulu’s
affidavit which was delivered at approximately
09h45 this morning.
9.
I have read the very late affidavit of Mr Xulu, which deals with
averments and
allegations of impropriety and alleged perjury by Ms
Bawa and Mr Manuel during the virtual hearing of this application on
21 May
2021, in that they allegedly mislead me when asserting that
the only accounts which were frozen pursuant to the Smith J order of
12 October 2021, were those of BXI. In summary, Mr Xulu refers to two
First National Bank accounts (62446673320 and 74703203609),
the
former being a personal account and the latter being a BXI business
cheque account, which FNB advised on 13 October 2020, were
attached
in terms of a Court order. He alleges that Mr Manuel was aware of
these accounts falling under the order, yet failed to
disclose this
and through an instruction to Ms Bawa on 21 May 2021, mislead me. He
attaches the email from FNB, and leaves the
materiality and relevance
of this information “
in the Court’s hands”
(paragraph 20 of Mr Xulu’s supplementary affidavit), yet
also requests that I report Mr Manuel and Ms Bawa’s conduct
to
the Legal Practice Council.
10.
In a very detailed affidavit, Mr Manuel sets out his response to the
alleged non-disclosure,
the details of the bank accounts received
from FNB, that the bank’s email did not disclose the name of
the account holders,
that he had no reason to doubt the correctness
of information received from FNB in November 2020 and that the
allegations of perjury
and misleading of the Court during the hearing
of the leave to appeal application are unfounded. Various averments
and responses
by Mr Manuel need not lengthen this judgment, though I
have considered same this morning.
11.
Mr Xulu and BXI were legally represented in the contempt application
and in the leave to
appeal application. The lateness of the
supplementary affidavit is questionable given that the leave to
appeal application, which
was recorded was heard on 21 May 2021 and
the date for judgment indicated to the legal representatives is
today, 7 June 2021. Judgment
would have been delivered at 09h00 today
but for these new developments, and it has now been delayed for a few
hours to deal with
the affidavits and make adjustments to this
judgment. My further comments on these developments are as follows:
the information
regarding the above-mentioned bank accounts fell
within the knowledge of Mr Xulu yet was not addressed in his
answering affidavit
in the contempt application; and secondly, the
allegation that the DEA’s legal representatives deliberately
failed to disclose
the information to me or wilfully mislead me
during proceedings cannot be sustained when I have regard to the
affidavits, the contempt
application, the record of the virtual
hearing and my corresponding notes on the day. Thirdly, there is a
lack of information regarding
the accounts. Whether FNB failed to
disclose information or not is not an issue I need to address in this
judgment. As to the materiality
and relevance of the information
submitted by Mr Xulu at this late stage, presumably to support the
view that a R30 000 fine
cannot be paid, my respectful view is
that the information should have been disclosed in the answering
affidavit and submissions
should have been made during argument on 19
March 2021. Whilst I have indeed taken cognisance of the two
affidavits presented
to me this morning, the information presented to
me does not change the eventual outcome of this judgment.
12.
During the hearing on 21 May, Mr Shai did not persist with the rule
45A application. It
was common cause that the filing of the leave to
appeal application suspends the orders granted on 4 May 2021.
Regarding the leave to appeal application, I consider the grounds
under the paragraphs below – the grounds are indicated in
bold
underlined Italics for ease of reference.
13
.
I misconstrued the merger in judgement doctrine that
treats a cause of action as extinguished once a judgement has been
given on
it
This
ground of appeal relates to the Rogers J
rule nisi
granted on
21 August 2019 which the respondents argued were finalised by the
learned Judge’s judgment delivered on 30
January
2020. I deal with these orders in paragraphs 28 to 39 of the main
judgment. The submission is that the
rule nisi
did not survive
the merger into the January 2020 order. The leave to appeal is sought
so that the Full Bench may provide “
clarity on this legal
issue and it is in the interests of justice and the rule of law that
the status of the merger in judgment
doctrine in our law be clarified
for all litigants and judges”
(excerpt, paragraph 8 of Mr
Xulu’s affidavit)
.
14
In support of the merger in law argument, the applicants refer me
only to a Canadian
authority
Hislop v Canada (Attorney
General)
2007 SCC 10
;
[2007] 1 S.C.R. 429
(S.C.C)
. The
only authority I have been able to find on this aspect relates to
ship arrests or admiralty matters – see
MT Pretty
Scene: Galsworthy Ltd v Pretty Scene Shipping S.A. and Another
[2021]
ZASCA 38
at paragraphs 63 to 65
and
Owners of the MV
Silver Star v Hilane Limited [2014] ZASCA
194 at
paragraph 19,
which refer to English arbitration awards governed
by English law
.
The merger in law argument fails to consider
that Rogers J had ordered at paragraph 3.2 of his August 2019 order
that the interdict
granted against BXI in paragraphs 3.2.1 and 3.2.3
thereof, were to prevail until finalisation of the matter or a Court
order permitting
that these orders (the interdict) be discharged.
15.
Mr Xulu did not ignore his court-ordered obligations and
took positive, reasonable, and practical measures to seek a
rescission
of the order and pursue an appeal in the SCA
It
is common cause that a rescission application is pending before Zilwa
J and that same was launched three days before I heard
the contempt
application (paragraph 5, main judgment). A prior similar application
was dismissed by Slingers J (paragraph 12, main
judgment). My
judgment details at length with the six orders which the DEA sought
to hold the respondents in contempt of and whether
the DEA had proved
fulfilment of the four requirements for a finding of contempt of
court in respect of each of these orders (see
paragraph 22, main
judgment). The judgment found BXI and Mr Xulu had not complied with
the Court orders and there is no need for
further elaboration on this
issue.
16.
I overlooked the clear and unequivocal evidence that the
judgment of Rogers J was procured by fraud and perjury on the part of
the
director-general
I
was not required in the contempt application to have made
determinations as to the evidence either accepted or rejected by
Rogers
J (or any of the other Judges, for that matter) in the matter
which resulted in his judgment of 30 January 2020. This ground of
appeal has no foundation and ignores the ambit of the proceedings
which I was required to determine. Furthermore, I was also not
required to determine whether the orders granted by Rogers J were
correct or valid.
17.
I misdirected myself in concluding that the orders issued by
Smith J were valid when the Judge had acted without jurisdiction and
authority
In
paragraphs 5, 12, 48, 54 and 56 of my judgment, I refer to the
respondents’ defence that Smith J lacked jurisdiction to
have
granted the orders which he did in October 2020. In doing so, I was
cognisant of and acknowledged that there was a pending
rescission
application which was due to be heard by Zilwa J. The evidence of
both parties in the contempt application and submissions
were
certainly considered in reaching the conclusions which I did, and I
refer to it at various places in my judgment. At the time
that the
contempt application was brought and subsequently argued on 25
February 2021, the Smith J orders were neither rescinded
nor set
aside. The legal principles and requirements for a finding of
contempt, which are discussed in the judgment, refer.
18.
I erred in law by finding that a party must simply comply with
Court orders he is appealing or rescinding; that there is no lawful
basis for directing that Mr Xulu and BXI be precluded from launching
any further applications against the DEA (paragraph 6 of the
orders
granted) and that such order is unconstitutional
Firstly,
the respondents certainly do not take issue that I misunderstood the
legal principles applicable to contempt of court applications
(see
paragraphs 18 to 23 of the judgment). Secondly, a bald assertion is
made that a party who seeks to rescind an order need not
comply with
the order. It must be remembered that Mr Masuku, counsel for the
respondents in the contempt application, agreed with
Ms Bawa that any
rescission application does not suspend an order. Secondly, I
certainly noted at paragraph 14 that a petition
was filed in respect
of the Rogers J judgment of 30 January 2020 and his refusal of leave
to appeal in September 2020. The petition
application was accompanied
by a condonation application.
19.
Ms Bawa submitted that there was no response from the registrar of
the SCA regarding the
condonation application and petition. I refer
to the judgment of
Myeni v Organisation Undoing Tax Abuse
and Another
[2021] ZAGPPHC 56,
where the
Full Court hearing an urgent petition in terms of
section 18(4)
of
the
Superior Courts Act 10 of 2013
, had to determine a preliminary
point related to a petition to the SCA. In the matter, the
respondents indicated in a letter to
the Judge President that the
appellant had not filed her application for leave to appeal timeously
at the SCA in terms of
section 17
of the Act and thus consequently
the order of Tollmay J granted on 27 May 2020 was still of force and
effect. At paragraph 19 of
the judgment, the Full Court considered
what the effect would be on the principal judgment of the lodgement
of a petition after
the right to appeal had lapsed. It held that the
principal judgment or order continued to remain in effect for the
mere fact that
the service of an application to condone the late
filing of the petition to the SCA does not suspend the operation or
execution
of the order (see also
Panayiotou v Shoprite
Checkers (Pty) Ltd and Others
2016 (3) SA 110
(GJ)
.
To illustrate the point in this matter, the petition and condonation
application were filed on 18 or 19 March 2021, more than
a year after
Rogers J’s judgment and several months after his refusal of the
leave to appeal application. While I am cognisant
of the submission
during the virtual hearing on 21 May that at that stage, there was as
yet no feedback from the registrar of the
SCA regarding the
condonation application, the respondents’ submission that the
SCA petition suspends the Rogers J orders,
considering the cases
which I have referred to above, is questionable. For all intents and
purposes, and until the SCA grants condonation,
the January 2020
orders granted by Rogers J remain in effect.
20.
The rest of this ground of appeal deals with the apparent and alleged
unconstitutionality
of the order which I granted at paragraph 6 (page
43 of the main judgment). The respondents are of the view that it
violates their
rights entrenched in sections 1,9 and 34 of the
Constitution, and the view is held that access to Courts and the
right to appeal
are denied. It is apparent that the DEA and its legal
representatives certainly do not read nor understand paragraph 6 as
doing
so and submitted that such order was not only requested by them
but warranted in the circumstances of the respondents’
continued
disobedience of the orders granted by the three Judges. It
is apparent from his leave to appeal application and supporting
affidavit,
that Mr Xulu reads certain parts of paragraph 6 and
ignores the rest of the paragraph which refers to “
any
further applications”
(see page 43 of the main judgment).
The paragraph/order certainly does not prevent nor preclude the
respondents from exercising
their right of appeal; it makes no
inroads on any rights in respect of the condonation application and
petition to the SCA in the
Rogers J matters which were filed prior to
the 4 May 2021 contempt judgment; and it most certainly does not
infringe any rights
in respect of the matters before Zilwa J –
in this regard, paragraph 6 specifically states that “
This
order (paragraph 6) does not apply to pending matters before Zilwa
J”
. At the risk of stating the obvious, the word “
further”
,
when used as an adjective, would refer to something additional to
what already exists, in other words, additional applications.
21.
Furthermore, in
SS v VV-S
[2018] ZACC 5
,
the Constitutional Court, in a leave to appeal application
related to non-compliance of a maintenance order, referred at
paragraph
31 of its judgment to
Burchell v Burchell
[2005] ZAECHC 33
ECD
. In this latter judgment, the High Court
ordered that unless the party who was held in contempt purged his
contempt, he ran the
risk of being precluded from further litigation
in that Court. In its unanimous judgment, the Constitutional Court
considered whether
such an order was contrary to section 34 of the
Constitution and the right of access to Courts. It found such an
order to be “
wholly appropriate in circumstances when one is
dealing with conduct that may be described as contemptuous of the
authority of the
order issued by a court”
(paragraph 31 of
the judgment). At paragraph 21 of my judgment I refer, amongst
others, to
Burchell
, and at paragraphs 66 to 69
thereof, the conduct of the respondents in not complying with the
various orders, is considered against
the requirements of section 165
of the Constitution. Thus, the submission of that paragraph 6 is an
unconstitutional order fails
to consider the findings of the
Constitutional Court in
SS v VV-S
.
In
addition, an earlier decision in
Di Bona v Di Bona
1993 2 SA 682
(C)
supports the view that a Court may refuse
to hear a party until he/she has purged themselves of the contempt
(at 688F-G).
22
.
I erred in finding Mr Xulu in contempt and in ordering him
to surrender his personal vehicle (the Porsche) when the only
liability
determined by the Rogers J judgment was in respect of BXI
The
orders granted by Smith J and Binns-Ward J and the non-compliance in
relation to the surrender of the Porsche are dealt with
at length in
the judgment, commencing at paragraph 49 thereof. The Porsche was
attached pursuant to an initial order granted by
Smith J against the
respondents on 12 October 2021, directing the Sheriff to take
possession thereof. Mr Xulu was the owner of
the Porsche and cited as
the fifth respondent in the matter before Smith J and similarly in
the later orders related to the Porsche.
The evidence in the contempt
application showed repeated non-compliance of the orders related to
the Porsche.
23.
I erred in ordering Mr Xulu and BXI to pay a R30 000 fine
when there exists no lawful basis for such a Draconian order
Mr
Xulu and BXI are quite entitled to their view that the R30 000
fine is Draconian. As a reminder though, Ms Bawa, on 25 February
2021, sought a fine of R3, 4 million, and when I pressed her further
on the topic, she suggested a more modest fine in the sum
of
R244 000, which was the amount frozen in BXI’s FNB account
(pages 29-30 of the record; paragraph 32 of the main judgment).
Ms
Bawa correctly admitted later that she had over-reached, hence
submitting a further note on fines on 19 March 2021 and leaving
the
amount in my discretion. I point out that there was no evidence
presented in the contempt application that all Mr Xulu’s
accounts were frozen. Furthermore, I had regard to the seriousness of
the orders requested and that is why I pertinently requested
of Mr
Masuku to address me on the fine and committal aspects if the
application were to be successful – he had no submissions,
and
I again requested that he addressed me on it and takes instructions,
and this exchange is evidenced at pages 44 and 45 of the
record of
proceedings on 19 March 2021. Mr Masuku eventually submitted that he
could not make any submissions on figures (amounts)
and a period of
committal, but then suggested a R200 fine if I were to make a finding
of contempt. A R30 000 fine, considered
objectively and in light
of the findings made in the judgment, was reasonable and has as its
aim, to bring the contemnors (Mr Xulu
and BXI) to their senses, and
not to punish them (see
S v Beyers
1968
(3) SA 70
(A)
which I refer to at paragraph 20 of the
judgment). Finally, the issue related to the late supplementary
affidavit is addressed
in preceding paragraphs.
24.
I erred in sentencing Mr Xulu to 30 days’ imprisonment
when there exists no lawful basis for such sentence;
My
comments above refer and the findings of contempt are dealt with in
detail in the judgment. Paragraph 2 of the order on page
42 of my
judgment and the authorities mentioned and discussed in the judgment
refer and need not be elaborated upon except to point
out that
paragraph 5 of the order is a sentence of 30 days’ imprisonment
wholly suspended for three years on very specific
conditions related
to any further contempt under this case number. The committal
to 30 days’ imprisonment is a criminal
sanction which a Court
may impose for contempt of court – the various authorities in
the judgment refer.
25.
The remaining grounds of appeal seem to be a repetition of grounds
already mentioned above.
The averment at paragraph 23 that Mr Xulu is
left with the inescapable conclusion that I was “
determined
at all costs”
to find him guilty of the crime of contempt
to the extent of departing from settled law (the reference to the
“
unconstitutional orders”
), is without merit. Mr
Xulu and BXI, as well as his legal representatives, were treated with
the utmost respect, and the respondents’
were granted two
postponements for legal representation. The matter was considered
objectively and my knowledge of the history
of the matter was
obtained from the application which came before me on 25 February.
Furthermore, Mr Xulu’s lengthy complaint
in his affidavit about
his portrayal in the local media, with respect, has nothing to do
with any grounds of appeal related to
the contempt application.
Lastly, the correspondence and emails referred to above have been
placed in the Court file.
26.
Having considered the grounds of appeal objectively, my finding is
that the grounds advanced in the
application do not have substance or
merit and the respondents have not overcome the threshold of the test
in
section 17
(1)(a)(i) of the
Superior Courts Act, in
that there
appears to me to be no reasonable prospect of success on appeal.
Furthermore, I also find that there is no reason to
grant leave on
any of the other bases referred to in the remaining sub-paragraphs of
section 17(1).
0.
42cm; margin-bottom: 0cm; line-height: 150%">
27.
In the result, I grant the following order:
The application
for leave to appeal is refused, with costs, to be paid jointly and
severally by the first and fifth respondents.
M
PANGARKER
ACTING JUDGE OF
THE HIGH COURT
For
2
nd
applicant:
Ms N Bawa SC with Mr B Joseph SC and Ms J Williams
Instructed
by:
State Attorney, Cape Town
Mr L Manuel
For
1
st
and 5
th
respondents:
Adv. Shai
Instructed
by:
Ndumiso
Attorneys