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[2022] ZAWCHC 191
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Janse van Rensburg v Obiang and Another (21748/2017) [2022] ZAWCHC 191; 2023 (3) SA 591 (WCC) (26 September 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.:
21748/2017
In
the matter between:
DANIEL
WILLIAM JANSE VAN RENSBURG
Applicant
and
THEODORIN
NGUEMA OBIANG
First Respondent
THE
CITY OF CAPE
TOWN
Second Respondent
AND
THEODORIN
NGUEMA OBIANG
Applicant
and
DANIEL
WELMAN JANSE VAN RENSBURG
First Respondent
SHERIFF
CAPE TOWN WEST
Second Respondent
REGISTRAR
OF DEEDS WESTERN CAPE
Third Respondent
Coram:

Hockey, AJ
Date
of Hearing:
08 August 2022
Date
handed down:       26 September 2022
JUDGMENT (HANDED DOWN
ELECTRONICALLY)
INTRODUCTION
[1]
The parties before me have been engaged in
protracted litigation for the past five years. In the main action
proceedings to which
the present applications relate, Mr Daniel
Welman Janse van Rensburg (“Mr Janse Van Rensburg”)
obtained an order in
his favour on 18 June 2021 from Lekhuleni AJ (as
he then was) against Mr Theodorin Nguema Obiang (“Mr Obiang”)
for
payment of the sum of R39 882 000.00 (“the
Lekhuleni order”).
[2]
There are presently two applications before
me. The first application is one brought by Mr Obiang, amongst other,
for;
(a)
A declaration that an interim order granted
by Ndita J on 5 August 2021 (“the Ndita order”), as
requested in Part A
of the notice of motion in an application for the
rescission of an order by Dolamo J as well as the Lekhuleni order
(“the
rescission application”), suspended the Lekhuleni
order pending the outcome of any and all appeals processes related to
Part
B of the notice of motion.
(b)
A declaration that Mr Van Janse van
Rensburg is held in contempt of the Ndita order and that a sanction
of a suspended sentence
of imprisonment, alternatively, a fine be
imposed.
(c)
As an alternative (to (a) and (b) above),
Mr Obiang requested that the operation and execution of the Lekhuleni
order be suspended
pending the outcome of any and all appeals
processes related to the rescission application.
[3]
The second is an application by Mr Janse
van Rensburg for the authorisation of a warrant of attachment against
two immovable properties
owned by Mr Obiang situated in Bishopscourt
and Camps Bay, Cape Town respectively, and for the sheriff to be
authorised to execute
the warrant of attachment against these
immovable properties. This application is brought in terms of Rule
46A of the Uniform Rules
of Court (“the Rules”).
BACKGROUND
[4]
At all material times during the saga
between Mr Obiang and Mr Janse van Rensburg, the former was the Vice
President of the Republic
of Equatorial Guinea (“the REG”).
Mr Janse van Rensburg instituted action against Mr Obiang in his
personal capacity
for damages suffered as a result of his wrongful
arrest and detention in the REG from 2013 to 2015 (“the main
action”).
[5]
Mr Obiang defended the main action.
Pleadings were exchanged, however, on 13 July 2020, Mr Obiang
terminated the mandate of his
erstwhile attorneys and remained
legally unrepresented in South Africa until the appointment of his
current attorneys of record.
[6]
During the time that Mr Obiang was
unrepresented, at least two significant steps were taken in the
litigation process for present
purposes. These are:
[6.1]
On 17 August 2020, Dolamo J, on application
by Mr Janse van Rensburg, struck out the defenses of Mr Obiang on the
grounds of non-compliance
with discovery obligations (“the
Dolamo order”).
[6.2]
The
main action was heard by Lekhuleni J, who gave his judgment and order
in favour of Mr Janse van Rensburg on 18 June 2021 (i.e.
the
Lekhuleni order)
[1]
.
[7]
After the Lekhuleni order was handed down,
Mr Obiang instructed his current attorneys to apply for the
rescission of both the Dolamo
and the Lekhuleni orders.
[8]
The notice of motion in the rescission
application consisted of a Part A with a prayer for the interim
relief, namely a suspension
of the Lekhuleni order pending the
determination by the High Court of Part B of the application, namely
for a final order of the
rescission of the two orders.
[9]
Part A of the rescission application came
before Ndita J who, on 5 August 2021, by agreement between the
parties, ordered as follows:
“
The
operation and execution of the order granted by the Honourable Mr.
Justice Lekhuleni AJ on 18 June 2021, under case number 21748/2017,

is suspended pending the determination by the High Court of Part B of
the application instituted by the Applicant on 29 July 2021
.”
[10]
Part B of the rescission application was
heard by Slingers J who dismissed the application on 13 December 2021
(“the Slingers
judgment”).
[11]
On 14 December 2021, Mr Obiang’s
attorneys informed the attorneys for Mr Janse van Rensburg that Mr
Obiang would be instituting
an application for leave to appeal
against the Slingers judgment. The application for leave to appeal
was filed on 11 January 2022.
[12]
On 22 February 2022, Slingers J granted
leave to appeal to the full bench of this court. The appeal is yet to
be heard.
[13]
In the interim, and by virtue of the
Lekhuleni order, Mr Janse van Rensburg’s attorneys proceeded to
execute against Mr Obiang’s
movable property in Bishopscourt
which was sold in execution on 26 January 2022.
[14]
Mr Janse van Rensburg now seeks
authorisation for the sale in execution of Mr Obiang’s
immovable properties. I pause to mention
that these properties have
been under judicial attachment since 17 October 2017 at the instance
of Mr Janse van Rensburg to found
jurisdiction against Mr Obiang.
THE ISSUES TO BE
DETERMINED
[15]
The main issues for consideration in the
two applications before me is firstly, whether Mr Janse van Rensburg
should be held to
be in contempt of the Ndita order, and secondly,
whether the Ndita order suspended the execution of the Lekhuleni
order pending
the outcome of any and all appeals related to the
rescission application.
[16]
What also falls to be determined is whether
the circumstances of this matter warrants for the application of rule
45A, i.e. whether
the execution of the Lekhuleni order should be
suspended pending the outcome of any and all appeals, if at all.
[17]
The relief sought by Mr Obiang, namely a
stay of execution and the application for contempt, is partially
premised upon whether
the appeal of the rescission application is
pending. Counsel for Mr Janse van Rensburg argues that the appeal has
lapsed. Therefore,
it must also be decided whether this court is in a
position, based on the papers before me, to determine whether the
appeal has
in fact lapsed.
[18]
The disposal of both the execution and
contempt proceedings revolves largely around the questions of whether
or not the Ndita order
was suspended with the dismissal of the
rescission application by Slingers J, and whether the lodgment of the
appeal against the
Slingers judgment revived the Ndita order and
conversely suspended the Lekhuleni order. A proper interpretation of
the Ndita order
and its effect is therefore also required.
Has the appeal in the
rescission application lapsed?
[19]
Mr Obiang’s opposition to the
application to execute against his immovable property is premised on
his assertion that an appeal
is pending against the Slingers
judgment.
[20]
Mr Janse van Rensburg argues that the
appeal against the decision by Slingers J has lapsed due to Mr
Obiang’s failure to file
his power of attorney and the late
filing of the notice of appeal without an application for
condonation. It is further contended
in his heads of argument that Mr
Obiang was required, in terms of Rule 49(6), to make a written
application to the registrar of
the court where the appeal is to be
heard for a date for the hearing of his appeal within 60 days of
delivery of his notice of
appeal, which he did on the sixtieth day.
In addition Rule 49(7)(b) required Mr Obiang to serve two copies of
the record on Mr
Janse van Rensburg, which he failed to do.
[21]
Counsel for Mr Obiang pointed out that the
argument raised about the lapsing of the appeal was raised for the
first time in the
heads of argument and is not dealt with in the
papers in either of the two applications before this court.
[22]
To
state the obvious, heads of argument is not evidence, nor are they
pleadings or affidavits under oath. It is what its name implies
–
argument, or persuasive comments to advance a party’s case.
Such argument must be premised on the law and what is
contained in
the pleadings or affidavits filed with the court. The court, after
all, is bound by the facts as set out in the papers
and pleadings.
[2]
[23]
Mr Janse van Rensburg did not raise the
issue relating to the alleged lapsing of the appeal in either of the
two applications before
me. Mr Obiang, therefore, did not have an
opportunity to respond thereto in his affidavits. The danger of
raising this issue for
the first time in the heads of argument is
evident by the fact that counsel for Mr Janse van Rensburg relied on
an erroneously
dated version of Slinger J’s judgment granting
leave to appeal. It appears that this version of the judgment was
signed on
2 February 2022. Based on this version of the judgment,
counsel for Mr Janse van Rensburg argued in their heads of argument
that
the notice of appeal (a copy of which was also attached to the
papers), was delivered fifteen days late. A version of the judgement

which was correctly dated and which was not disputed during argument,
is attached elsewhere in the papers, indicating that it was
signed on
22 February 2022. The contention that the notice of appeal was filed
fifteen days late is therefore wrong and misleading.
[24]
Aside
from the fact that it is irregular to raise a potential defence for
the first time in heads of argument
[3]
,
I do not have the facts, duly ventilated in the papers before me to
conclude that the appeal against the Slingers judgment has
in fact
lapsed.
The Ndita order and
the Rule 45A application.
[25]
Mr Obiang instituted the rescission
application on 29 July 2021. The relief sought in Part A of his
notice of motion, namely the
suspension of the operation and
execution of the Lekhuleni order was granted in terms of the Ndita
order. The relief in Part B
of the notice of motion, namely the
rescission of both the Dolamo and Lekhuleni orders was refused by
Slingers J. However, the
learned judge granted leave to appeal
against her order in this respect.
[26]
The parties are now at loggerheads as to
the effect of the Slingers judgment and/or the pending appeal of that
judgment on the Ndita
order.
[27]
It bears mention that in relation to Part A
of Mr Obiang’s notice of motion, he asked for the suspension of
the operation
and execution of the Lekhuleni order “
[p]ending
the final determination of the relief sought in Part B
.
. .”. The Ndita order which was granted by agreement, does not
contain the adjective “
final
”
in front of the word “
determination
”.
[28]
Counsel
for Mr Janse van Rensburg argues that the absence of the word “final”
is significant, as concluded by Riley
AJ in
Auction
Alliance (Pty) Ltd and Another v Minister of Police and Others
[4]
that “‘
final
determination’ of an application must therefore be read to mean
something distinct from the mere ‘determination’
of the
application. In my view the word ‘final’ . . . , can and
must on its ordinary meaning only mean to include determination
on
review or appeal
.”
[29]
Mr
Janse van Rensburg contends that when Slingers J dismissed the final
relief sought in Part B, the interim order of Ndita J was
discharged
which opened the way for him to execute upon the Lekhuleni order. In
this regard, reliance is placed on
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
[5]
where it was held by Harms JA:
“
Where
an interim order is not confirmed, irrespective of the wording used,
the application is effectively dismissed as there is
likewise nothing
that can be suspended. An interim order has no independent existence
but is conditional upon confirmation by the
same court (albeit not
the same judge) in the same proceedings after having heard the other
side.”
[6]
[30]
In
School
Governing Body of Uitzig Secondary School and Another v MEC for
Education, Western Cape and Another; In Re: School Governing
Body of
Uitzig Secondary School and Others v MEC for Education Western Cape
and Others
[7]
,
Masuku AJ held that the judgment in
Snow
Delta
does not deal with
section 18(1)
of the
Superior Courts Act 10 of
2013
, but rather states what is trite in common law.
[8]
The court held further to that “
Harms
JA did not deal with a situation . . . where the appellant has lodged
an application for leave to appeal to the Supreme Court
of Appeal and
wishes to stop the implementation of an administrative decision until
that application for leave to appeal is disposed
of
.”
[31]
It
is appropriate, at this stage to have regard to the relevant portions
of Section 18 of the Superior Court Act, as follows:
“
(1)
Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the application
or appeal.
(2)
Subject to
subsection 3, unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision
that is an
interlocutory order not having the effect of a final judgment, which
is the subject of an application for leave to appeal
or of an appeal,
is not suspended pending the decision of the application or appeal.
(3)
A
court may only order otherwise as contemplated in subsection (1) and
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court do orders
”
[32]
It is important to note the context of the
judgment of Masuku AJ in
Uitzig
.
In that matter, Saldanha J had granted an interim order suspending an
administrative decision to close down a school, pending
the main
application for review of such decision. Hack AJ dismissed the review
application, which brought an end to the Saldanha
J order. Masuku AJ
held that the Saldanha J order was revived, and the Hack AJ decision
was suspended when an application for leave
to appeal was lodged
against the order of Hack AJ.
[33]
It is in this context, and his
interpretation of the
Delta Snow
judgment, that Masuku AJ held:
“
The
First Respondent’s contention, based on her understanding of
the Harms JA’s remarks in MV Snow, that an order dismissing
an
application cannot be suspended in terms of the common law, does not,
in my view apply under s 18(1) with the equal force that
it applied
under common law. While the common law creates a distinction between
the orders that may be suspended pending an appeal,
s 18(1) does not
do so. Section 18(1) applies to all decisions or orders. It does not
apply, as the First Respondent contends,
only to orders or decisions
that are granted. I cannot think of any reason why an interpretation
of s 18(1) in terms of which the
suspension doctrine applies only to
granted orders and not those that are not granted is possible under s
18(1). Harms JA did not
purport to give an interpretation of s 18(1)
and its scope of application. But even if I am wrong on this –
on the basis
of Harms JA in MV Snow, it is clear to me that the
purpose of the suspension requirement in applications for leave to
appeal would
be frustrated if it were to operate in a discriminatory
manner to granted orders only.
”
[34]
As
for the reliance by counsel for Mr Obiang on the judgment in
Uitzig
,
counsel for Mr Janse van Rensburg contends that this judgment is
wrong. Instead, reliance is placed on the judgment of Windell
J in
Royal
AM Football Club v National Soccer League and Others
[9]
where the applicant, Royal AM unsuccessfully applied for an
arbitration award to be set aside. An application for leave to appeal

the order of refusal was dismissed. Royal AM subsequently petitioned
the SCA and argued that, the petition, as a matter of law
and in
terms of
section 18
of the
Superior Courts Act, suspended
the
implementation of the arbitration award.
[35]
In
Royal AM
,
the court gave consideration to the judgments in
Snow
Delta
and the decision in
Uitzig
,
and concluded:
“
[55]
In other words, this court must find that despite the fact that
Sutherland DJP had dismissed its review of the Epstein award,
Royal
AM’s application for leave to appeal had nonetheless somehow
given Royal AM the relief it sought in the review, namely,
that the
Epstein award would not operate? This argument, and the judgment
in Uitzig, is directly at odds with the binding
authority of the
SCA in Snow Delta, and would have the effect that the dismissal
of the review application would somehow confer
some benefit to Royal
AM, in this instance to get Royal AM to where it wants to be, namely
at the top of the GladAfrica Championship.
[56]
I do not intend to follow the decision in Uitzig. Sutherland
DJP had dismissed the application to review the award
of Epstein SC.
There was accordingly nothing that could be “suspended”
by Royal AM’s application for leave to
appeal against the order
of Sutherland DJP. It follows that Royal AM's petition for leave to
appeal against the order of Sutherland
DJP also does not entitle it
to the declaratory relief it seeks in the current application, namely
reinstating it as the “lawful
occupant of the first position in
the GladAfrica Championship until lawfully removed.”
[36]
Royal AM
and
Uitzig
are
decisions of two different divisions of the High Court. In
Royal
AM
the court held that it was bound by
Snow Delta
,
whereas in
Uitzig
,
the court held that it was not. In the latter instance, Masuku AJ
held that
Snow Delta
did not deal with
section 18
of the
Superior Courts Act, but
rather
with the common law. Despite making the distinction, there still
appears to be a conflict between
Royal
AM
and
Uitzig
.
[37]
The
doctrine of precedent is an intrinsic feature of the rule of law
[10]
.
This doctrine is often expressed by in the Latin maxim
stare
decisis et non quieta movere
(to
stand by decisions and not to disturb settled matters). In
Gcaba
v Minister for Safety and Security and Others
[11]
the Constitutional Court explained the maxim to mean “
that
in the interest of certainty, equality before the law and the
satisfaction of legitimate expectations, a court is bound by
the
previous decisions of a higher court and by its own previous
decisions in similar matters
.”
[38]
Counsel
for Mr Janse van Rensburg urged this court to follow the decision of
Royal
AM
over
Uitzig
.
It is trite that I can do so only if the
Uitzig
decision, which is a decision of this division of the High Court, is
wrong. It is an age old principle that a court must follow
its own
precedent over that of other courts of equal status, unless its own
precedent is wrong. In
Bloemfontein
Town Council v Richter
[12]
,
it was held:
“
The
ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest oversight
or
misunderstanding, that is there has been something in the nature of a
palpable mistake, a subsequently constituted Court has
no right to
prefer its own reasoning to that of its predecessors - such
preference, if allowed, would produce endless uncertainty
and
confusion.
”
[13]
[39]
I am mindful that even if I agree with
counsel for Mr Janse van Rensburg (I am not saying that I do) I will
still have to consider
whether the Lekhuleni order should be
suspended by virtue of
Rule 45A.
It convenient, therefore, to
consider the relief sought under
Rule 45A
at this stage.
Rule 45
A
reads:
“
The court may,
on application, suspend the operation and execution of any order for
such period as it may deem fit: Provided that
in the case of an
appeal, such suspension is in compliance with
section 18
of the Act.
”
[40]
In
addition to
Rule 45A
, the Superior Courts have inherent power, in
terms of section 173 of the Constitution, to protect and regulate
their own process,
taking into account the interest of justice. Such
power includes the inherent discretion to order a suspension of
execution of
any order. The SCA confirmed the court’s power to
order a stay of execution in
Van
Rensburg NO and Another v Naidoo NO and Others; Naidoo and Others NNO
v Van Rensburg NO and Others
[14]
when it held:
“
[51]
Apart from the provisions of Uniform rule 45A a court has inherent
jurisdiction, in appropriate circumstances, to order a stay
of
execution or to suspend an order. It might, for example, stay a sale
in execution or suspend an ejectment order. Such discretion
must be
exercised judicially. As a general rule, a court will only do so
where injustice will otherwise ensue.
[52]
A court will grant a stay of execution in terms of Uniform rule 45A
where the underlying causa of a judgment debt
is being
disputed, or no longer exists, or when an attempt is made to use the
levying of execution for ulterior purposes. As a
general rule, courts
acting in terms of this rule will suspend the execution of an order
where real and substantial justice compels
such action.
”
[41]
The
principles generally applied by a court in exercising its discretion
to stay an execution, was neatly summarised by Waglay J,
as he then
was, in
Gois
t/a Shakespeare’s Pub v Van Zyl and Others
[15]
,
as follows:
“
The
general principles for the granting of a stay in execution may
therefore be summarised as follows:
(a)
A court
will grant a stay of execution where real and substantial justice
requires it or where injustice would otherwise result.
(b)
The
court will be guided by considering the factors usually applicable to
interim interdicts, except where the applicant is not
asserting a
right, but attempting to avert injustice.
(c)
The
court must be satisfied that:
(i)
the
applicant has a well-grounded apprehension that the execution is
taking place at the instance of the respondent(s); and
(ii)
irreparable
harm will result if execution is not stayed and the applicant
ultimately succeeds in establishing a clear right.
(d)
Irreparable
harm will invariably result if there is a possibility that the
underlying causa may ultimately be removed, i.e. where
the underlying
causa is the subject-matter of an ongoing dispute between the
parties.
(e)
The court is not concerned with the merits of the underlying dispute
- the sole enquiry is simply whether the causa is in dispute
.”
[42]
I
agree with the contextualisation of Rule 45A by Binns-Ward in the
recent judgment,
Stoffberg
N.O and Another v Capital Harvest (Pty) Ltd
[16]
namely:
“
The
broad and unrestricting wording of rule 45A suggests that it was
intended to be a restatement of the courts’ common law

discretionary power. The particular power is an instance of the
courts’ authority to regulate its own process. Being a judicial

power, it falls to be exercised judicially. Its exercise will
therefore be fact specific and the guiding principle will be that

execution will be suspended where real and substantial justice
requires that. ‘Real
and substantial justice’ is a
concept that defies precise definition,
rather like ‘good
cause’ or ‘substantial reason’. It is for the court
to decide on the facts of each given
case whether considerations of
real and substantial justice are sufficiently engaged to warrant
suspending the execution of a judgment;
and, if they are, on what
terms any suspension it might be persuaded to allow should be
granted.
”
[43]
According
to the reasoning in
Van
Rensburg
,
a court will grant a stay of execution where the underlying causa of
the judgment in question is being disputed or no longer exists,
or
when an attempt is made to use the machinery of execution for
ulterior or improper purposes.
[17]
Counsel for Mr Janse van Rensburg adds to this his reliance upon
BP
Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and
Another; BP Southern Africa (Pty) Ltd v ZA Petroleum and
Another
[18]
,
where it was held:
“
A
litigant with an enforceable judgment is entitled to payment, and
only in rare cases would be delayed in that process. In my view
there
may be exceptional cases where a court would still exercise a
discretion to prevent an injustice in staying execution.
”
[44]
Even
where the causa of a claim is undisputed, a court may still grant a
stay where otherwise an injustice will be done.
[19]
This will be the case, in my view, where the possibility exist that
the order on which the execution is predicated, may be expunged.
[45]
I am mindful that in the present matter,
the Lekhuleni order was granted on an unopposed basis after the
defence of Mr Obiang was
struck by Dolamo J. Slingers J refused an
application for the rescission, but granted leave to appeal against
her judgment. In
granting leave to appeal, she stated:
“
[3]
After considering the papers filed in the application for leave to
appeal and the argument presented by the parties’ counsel,
I am
of the view that there is a reasonable possibility that another
Court
would come to a different interpretation off Uniform Rule 16(3)
and/or find that the provision of Uniform Rule 16(4) were
applicable
to the service of the striking out application and to the notice of
set down which resulted in the Orders of 17 August
2020 and of 18
June 2021 being taken against the applicant.”
[46]
To put the Slingers judgment in context, it
is necessary to mention that Mr Obiang terminated the mandate of his
erstwhile attorneys
during July 2020. A notice of withdrawal of
attorneys of record was accordingly filed with the court on 28 July
2020 wherein it
was stated that Mr Obiang was reachable through a
certain Ms Hombria, an official of the embassy of the REG.
[47]
Mr Obiang remained unrepresented until 24
June 2021 when he appointed his current attorneys of record. In the
interim, Mr Janse
van Rensburg caused a notice to strike-out Mr
Obiang’s defence, as well as a notice of set down of the
proceedings which
commenced before Lekhuleni AJ to be served and
filed. (The form of service is under scrutiny and will be dealt with
in the pending
appeal of the Slingers judgment). Mr Obiang failed to
appear in both instances, which resulted in orders being made against
him.
According to my understanding the primary issue raised in the
rescission application, was whether proper and effective service was

effected on Mr Obiang during the period that he was unrepresented, in
respect of the strike-out application and in respect of the
set down
of the matter.
[48]
When an attorney is appointed to act, or
ceases to act on behalf of a party, Rule 16 requires certain
processes to be followed.
Slingers J, as alluded to above, raised a
possible concern about the interpretation of Subrule 16(3) and also
whether Subrule 16(4)
finds application when Mr Obiang’s
erstwhile attorney withdrew. For the sake of completeness, I quote
these subrules without
saying anything more (as these are issues to
be considered by the full bench on appeal):
“
(3) Upon
receipt of a notice in terms of subrule (1) or (2), the address of
the attorney or of the party, as the case may be, shall
become the
address of such party for the service upon such party of all
documents in such proceedings, but any service duly effected

elsewhere before receipt of such notice shall, notwithstanding such
change, for all purposes be valid, unless the court orders
otherwise.
(4) (a) Where an
attorney acting in any proceedings for a party ceases so to act, such
attorney shall forthwith deliver notice thereof
to such party, the
registrar and all other parties: Provided that notice to the party
for whom such attorney acted may be given
by facsimile or electronic
mail in accordance with the provisions of rule 4A. (b) The party
formerly represented must within 10
days after the notice of
withdrawal notify the registrar and all other parties of a new
address for service as contemplated in
subrule (2) whereafter all
subsequent documents in the proceedings for service on such party
shall be served on such party in accordance
with the rules relating
to service: Provided that the party whose attorney has withdrawn and
who has failed to provide an address
within the said period of 10
days shall be liable for the payment of the costs occasioned by
subsequent service on such party in
terms of the rules relating to
service, unless the court orders otherwise. (c) The notice to the
registrar shall state the names
and addresses of the parties notified
and the date on which and the manner in which the notice was sent to
them. (d) The notice
to the party formerly represented shall inform
the said party of the provisions of paragraph (b).
”
[49]
Should the appeal against the Slingers
judgment succeed, it will have the effect of the expungement of the
Lekhuleni order and Mr
Obiang will be granted leave to defend the
main action proceedings. In this scenario, and if Mr Janse van
Rensburg is allowed to
proceed with the execution of Mr Obiang’s
immovable properties, such properties would be sold by auction and
the net proceeds
would be paid to Mr Janse van Rensburg to satisfy
the Lekhuleni order. This would lead to substantial prejudice for Mr
Obiang as
he could be without any satisfactory remedy, besides trying
to recover from Mr Janse van Rensburg.
[50]
On the other hand, if a stay of execution
is granted, it will not affect the Lekhuleni order in the event of
the appeal against
the rescission application being unsuccessful. In
addition, the properties, which remain under attachment, will be
available for
execution.
[51]
Should a stay of execution not be granted
at this stage, Mr Obiang would have suffered irreparable harm in the
event of the Lekhuleni
order ultimately being set aside. However, no
such harm would have been suffered by Mr Janse van Rensburg should Mr
Obiang be unsuccessful
in his challenge of the orders against him.
[52]
With regard to the balance of convenience,
counsel for Mr Janse van Rensburg contends that this favours his
client, as Mr Obiang
is an extremely wealthy man, whereas Mr Janse
van Rensburg has been unemployed and has suffered under financial
constrains since
his return to South Africa from the REG. I have
sympathy for Mr Janse van Rensburg in this regard, but the harm that
Mr Obiang
will suffer should a stay not be granted and he succeeds in
having the orders against him expunged, would be far worse.
[53]
In the result, I am of the view that
justice would be best served if the operation and execution of the
Lekhuleni order is suspended
pending outcome of all and any appeals
related to the Slingers judgment. Such order, with reference to the
proviso in Rule 45A,
will not offend
section 18
of the
Superior
Courts Act.
[54]
It goes without saying that the request
made by Mr Janse van Rensburg’s application to have Mr Obiang’s
immovable properties
declared executable under
Rule 46A
should not be
granted at this stage. This is not to say that the application should
be dismissed, but rather postponed, in which
case it may be
re-enrolled following any and all appeal processes of the rescission
application.
The contempt
application.
[55]
The application to hold Mr Janse van
Rensburg in contempt of the Ndita order arises from the sale in
execution of Mr Obiang’s
movable property on 26 January 2022.
[56]
After the Slingers judgment was handed down
on 13 December 2021, the parties disagreed as to whether that
judgment suspended the
Ndita order or not. Additionally they also
disagreed as to whether the application for leave to appeal against
the Slingers judgment,
as well as the granting of such leave,
suspended the order in question.
[57]
On 14 December 2021, Mr Obiang’s
attorneys wrote to Mr Janse van Rensburg’s attorneys informing
the latter that Mr Obiang
would be instituting an application for
leave to appeal against the Slingers judgment and requested, in the
light thereof, an undertaking
that the execution process be held in
abeyance pending the outcome of the application for leave to appeal.
Mr Janse van Rensburg’s
attorneys responded the same day
refusing to give the undertaking as requested.
[58]
Mr Obiang’s application for leave to
appeal against the Slingers judgment was duly filed on or about 6
January 2022.
[59]
On 25 January 2022, the day before the sale
in execution of Mr Obiang’s movable property, his attorneys
again wrote to the
attorneys for Mr Janse van Rensburg, reminding
them of the Ndita order, the fact that an application for leave to
appeal was instituted
against the Slingers judgment, and opining that
in terms of
section 18(1)
of the
Superior Courts Act, the
operation
and execution of the Slingers judgment was suspended. They stated
that “
[o]ur courts have held
that
the effect of an application for leave to appeal on a rescission
application is that it has not been finally determined and
is
therefore still pending
”
and as a
result, “
the operation and
execution of the Lekhuleni AJ judgement remains suspended
.”
[60]
Mr Janse van Rensburg’s attorneys
responded the same day. To demonstrate the divergent positions held
by the parties, it is
necessary to quote the letter of the attorneys
for Mr Janse van Rensburg in some detail:
“
1.
We initially agreed to your request
to stay the writ of execution pending the outcome of the rescission -
provided that an expedited
date for the hearing be obtained. The
parties agreed on time limits for the delivery of affidavits. It is
clear that the purpose
of that agreement was to defer execution until
judgement in the rescission application was handed down. That
agreement is embodied
in the precise wording of the order of Ndita of
5 August 2021, stating that the order of Lekhuleni AJ is suspended
‘
pending the determination
by the High Court of Part B of the Application
.’
2.
Had it been the intention that execution be stayed pending the
final
determination of the rescission
application, that would have been stated in the order. it would make
no sense to agree upon an expedited
date for the hearing of the
matter – but render execution subject to the outcome of an
appeal months, if not years, later.
3. It follows that on
13 December 2021, when slingers J dismissed Part B of the
Application, our client became entitled to proceed
with the execution
of Lekhuleni AJ’s order.
4. As of 14 December
2021 your firm clearly understood this to be the case. You then asked
us to hold execution in abeyance pending
the outcome of the
Application for Leave to Appeal. We responded in the negative that
same day. The sale was duly advertised on
10 January 2022. Yet you
waited until 24 hours before the advertised date, to take further
steps. We submit this is symptomatic
of your client’s contempt
for the Court’s process. It is unfortunate that, from the
initiation of this litigation in
2015, your client has treated it as
a dilatory game.
5.
It does not avail your client to invoke
s 18(1)
of the
Superior
Courts Act, No 10 of 2013
. Because our client is not attempting to
exercise the decision of Slingers J, there can be no question of her
decision being ‘suspended’.
Slingers J simply determined
not to rescind the order of Lekhuleni AJ. That leaves Mr Janse van
Rensburg free to execute on the
order of Lekhuleni AJ, remains
binding in its own right until such time as it is itself set aside on
appeal
.”
[61]
In
the words of Sachs J in
Coetzee
v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and Others
[20]
,
“
the
rule
of law requires that the dignity and authority of the courts, as well
as their capacity to carry out their functions, should
always be
maintained
.”
[62]
It
is no surprise, therefore, that the intentional disobedience of a
court order is a criminal offence. In
Fakie
NO v CCII Systems (Pty) Ltd
[21]
it was held that contempt proceedings in the hands of a private
party, “
is
a peculiar amalgam, for it is a civil proceeding that invokes a
criminal sanction or its threat
.”
[22]
[63]
Contempt of court in civil proceedings was
defined in
Fakie
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).”
[23]
(Internal references removed.)
[64]
Once
an applicant in civil contempt proceedings established non-compliance
with an order which has been duly served on a respondent,
the onus
shifts to the latter to show the existence of a reasonable doubt
whether the non-compliance was willful and
male
fide
.
If the respondent fails to furnish evidence raising such reasonable
doubt, the offence of contempt would have been established
beyond
reasonable doubt.
[24]
[65]
In the present matter, the correspondence
between the attorneys representing the respective parties clearly
demonstrates divergent
views on the executability of the Lekhuleni
order after the Slingers judgment has been handed down and with an
appeal still pending.
It can be inferred that the parties, acted on
the advice of their attorneys. Mr Janse van Rensburg’s belief,
therefore, as
expressed by his attorney in the letter dated 25
January 2022, was that he became entitled to proceed with the
execution of the
Lekhuleni order when Slingers J dismissed Part B of
the rescission application.
[66]
Mr Janse van Rensburg further argued that
the anticipated application for leave to appeal did not assist Mr
Obiang, since Slingers
J, in his view, simply determined not to
rescind the order of Lekhuleni AJ and there was therefore no order
that was being suspended.
[67]
In these circumstances, and given these
facts, it cannot be said that Mr Janse van Rensburg acted willfully
and
male fide
in proceeding with the execution of the Lekhuleni order by way of the
sale in execution of the movables.
COSTS
[68]
What remains is the question of costs.
[69]
Regarding the contempt proceedings, Mr
Obiang was aware of Mr Janse van Rensburg’s position and his
reasons why he believed
he was entitled to execute upon the Lekhuleni
order after Slingers J dismissed the rescission application. This was
clearly demonstrated
in the correspondence between the respective
firms of attorneys. He nevertheless proceeded with the contempt
application, which
was unsuccessful. Mr Obiang, however, was
successful in his alternative relief, namely the suspension of the
Lekhuleni order in
terms of
Rule 45A.
Both parties, under this
application, therefore, were partly successful and partly not. In the
result, I am of the view that it
would be fair to make no cost order
in relation to this application, save for the costs associated with
preparation for a hearing
on 12 April 2022, which I shall now deal
with.
[70]
Counsel for Mr Janse van Rensburg made an
earnest request that I order that Mr Obiang to pay the wasted costs
for the preparation
of the hearing on 12 April 2022. The basis for
this request is the fact that Mr Janse van Rensburg’s legal
team was compelled
to prepare for the hearing, which ultimately did
not take place. The date of 12 April 2022 was noted on Mr Obiang’s
notice
of motion. Mr Janse van Rensburg’s attorney corresponded
with the attorneys for Mr Obiang proposing that the parties approach

the Judge President of this division of the High Court to seek a
hearing date. Mr Obiang’s attorneys nevertheless sought
to have
the matter placed on the semi-urgent roll for 12 April 2022 by making
a written request to the Judge President to this
effect on 5 April
2022.
[71]
Additionally on Friday 8 April 2022, at
17h10, Mr Obiang’s attorneys served an unsigned affidavit on Mr
Janse van Rensburg,
which for the latter, served as an indication
that the matter would proceed on 12 April 2022. This prompted counsel
for Mr Janse
van Rensburg preparing heads of argument over the
weekend before 12 April 2022. It was only on Monday 11 April 2022,
when the registrar
of the judge who has been allocated to hear urgent
matters on 12 April 2022 was contacted, when it was discovered that
the matter
was not with the judge. Correspondence ensued late in the
afternoon on 11 April 2022, and it was only then that Mr Obiang’s

attorneys confirmed that the matter would not be heard the next day.
[72]
In the result of the above, I am of the
view that Mr Obiang caused Mr Janse van Rensburg to incur unnecessary
costs to prepare for
a possible hearing on 12 April, and the former
should therefore be held liable for the costs so incurred on an
attorney and client
scale.
[73]
As for the application in terms of
Rule 46A
for the execution of Mr Obiang’s immovable property, I do not
make a finding on Mr Janse van Rensburg’s entitlement
to an
order in terms of
Rule 46A.
Instead I am of the view that it would be
just to suspend the execution under the Lekhuleni order, and the
application should accordingly
be postponed until the finalisation of
any and all appeals relating to the rescission application. I am of
the view that no order
of costs should be made.
THE ORDER
[74]
In the result, I make the following order:
A.
In relation to the application brought by
Mr Teodorin Nguema Obiang (“Mr Obiang”):
(a)
The prayer to hold the first respondent, Mr
Janse van Rensburg, in contempt of the Ndita J order dated 5 August
2021 under case
number 21748/2017 (“the Ndita order”), is
refused.
(b)
The operation and execution of the order of
Lekhuleni AJ dated 18 June 2021 under case number 21748/2017 (“the
Lekhuleni order”)
is suspended pending the outcome of any and
all appeals processes related to the Part B of the application which
was instituted
under case number 21748/2017 in terms of which the
applicant sought the rescission of the Lekhuleni order.
(c)
Mr Obiang shall pay the first respondent’s
wasted costs associated with the preparation for the appearance and
hearing of
the matter on 12 April 2022 on an attorney and client
scale, such costs to include the costs of two counsel where so
employed.
(d)
Save for the order in (c) above, there is
no order as to costs.
B.
In relation to the application brought by
Mr Janse van Rensburg in terms of Rule 46A of the Unform Rules of
Court:
(a)
The application is postponed until the
outcome of any and all appeal processes related to the Part B of the
application which was
instituted under case number 21748/2017 in
terms of which the applicant sought the rescission of the Lekhuleni
order.
(b)
There is no order as to costs.
HOCKEY
AJ
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:

Adv. Hilton Epstein SC
Attorneys
for the Applicant:

Fairbridges Wertheim Becker
Counsel
for the 1
st
Respondent:
Adv. T Ngcukaitobi SC
Attorneys
for the 1
st
Respondent:
Victor Nikhwashu Attorneys Inc.
[1]
See the judgment of Lekhuleni AJ at
Van
Rensburg v Obiang
(21748/2014 [2021] ZAWCHC 128 (18 June 2021)
[2]
See
Atlantis
Property Holdings CC v Atlantis Excel Service Station CC
2019 (5) SA 443
(GP) at para 32
[3]
See
Nel
and Others v Cilliers
44111/2020) [2021] ZAGPPHC 113 (15 February 2021 at para 34
[4]
(8324/2014)
[2014] ZAWCHC180 (3 December 2014)
[5]
2000
(4) SA 746 (SCA)
[6]
Ibid
at para 6 page 752
[7]
2020
(4) SA 618 (WCC)
[8]
Ibid
para 9.
[9]
(21/27854)
[2021] ZAGPJHC 423 (26 July 2021)
[10]
See
True
Motives 84 (Pty) Ltd v Mahdi and Another
2009 (4) SA 153
(SCA) at para 100
[11]
2010
(1) SA 238
(CC) at para 58
[12]
1938
AD195
[13]
Ibid
at 323
[14]
2011
(4) SA 114 (SCA)
[15]
2011
(1) SA 148
(CLC) at para 37
[16]
(2130/2021)
[2021] ZAWCHC 37
(2March 2021) at para 26
[17]
See
Erasmus,
Superior
Court Practice
RS 17 2021, D1-106
[18]
2022
(1) SA 162
(GJ) at para 25
[19]
See
Strime
v Strime
1983 (4) 850 (CPD) at 854 H – 855 D.
[20]
[1995] ZACC 7
;
1995
(4) SA 631
(CC) at para 61
[21]
2006
(4) SA 326 (SCA)
[22]
Ibid
at para 8.
[23]
Ibid
at para 9
[24]
Fakie
(supra)
at para 22