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[2014] ZAGPJHC 348
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Perumal v Bhyat and Others (2013/33567) [2014] ZAGPJHC 348 (24 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2013/33567
DATE:
25 MARCH 2014
In the matter
between:
IRVIN
PERUMAL
.................................................................
Applicant
And
SHAHEEN
BHYAT
.....................................................
First
Respondent
DUNNEWELS BODY
CORPORATE
......................
Second
Respondent
SANNETTE
ERASMUS
............................................
Third
Respondent
JANINE
TARGETT
….............................................
Fourth
Respondent
OLIETE
PERESTRELO
.............................................
Fifth
Respondent
VHUMBANAI
PROPERTY SOLUTIONS
.................
Sixth
Respondent
JUDGMENT
(CONTEMPT
PROCEEDINGS)
MAKUME, J:
[1] This application
finds its origin in the judgment of Ranchod J dated the 12th June
2013 which judgment I have already set aside
as having been
erroneously sought and granted on incorrect information.
[2] Paragraphs 4, 5
and 6 of that order reads as follows:
“4. The First
Respondent provides a detailed and comprehensive statement as to how
the original court order was replaced by
the new order (‘the
new order’) and in the absence of a Rule 42 application. This
act be deemed a nullity and that
this Honourable Court takes
appropriate authorities for investigation.
5. The First
Respondent provides full detail and comprehensive statement as to how
the original order was replaced by the new order
and in the absence
of a Rule 42 application, this act be deemed a nullity and this court
order the Registrar of this court forward
a copy of this judgment
after it has been transcribed to the Law Society of the Northern
Provinces for further investigation of
the First Respondent’s
conduct and take such necessary steps as may be required in that
regard.
6. The First
Respondent is to pay the costs of this application which was brought
on urgent basis.”
[3] In a nutshell
the applicant says for having failed to comply with the order of
Ranchod this Court should find that:
3.1 The First
Respondent be held in contempt.
3.2 That he be
compelled to comply with the order of the Honourable Ranchod under
Case No 19691/2013.
3.3 That he be
interdicted from manufacturing and generating documents in order to
prejudice the applicant.
[4] The contempt
proceedings should have been brought under the case number from which
the conduct emanates namely Case No 19691/2013
instead of case number
33567/13. This is irregular and not in compliance with procedure and
falls to be dismissed. In any case
that court order itself no longer
exists even if it was still in existence this application would not
have succeeded.
[5] After reading
the founding affidavit in this matter especially paragraphs 17, 18
and 19 I have come to the conclusion that the
applicant is a teller
of tall tales some taller than others. I say this guardedly for I
hold the view that credibility ought not
to be decided on affidavit.
In this instance I am prepared to deviate from this noble rule and I
find that applicant cannot be
believed.
[6] In his affidavit
he says that after he had served a notice withdrawing the application
under Case No 19059/2013 the first respondent
used the same document
to manufacture his own withdrawal notice for the matter under Case No
2013/19691. He denies having withdrawn
Case No 19691/2013 and yet a
scrutiny of both notices establishes that he was the author of both
notices in any case he sought
the same relief in both cases.
[7] For an applicant
in contempt proceedings to succeed he must amongst others prove mala
fides. It is not an offence to disobey
a false court order in the
same way that it is not an offence to resist an unlawful arrest.
[8] In the matter of
Claremont v Claremont
1961 (3) SA 861
(C) at 866 it was held that a
person’s disobedience of the order must be not only be wilful
but also mala fide. In Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at 346 it was held that an honest belief that
non-compliances is justified or proper is incompatible with
intention to violate
the court’s dignity, repute or authority.
[9] The first
respondent as an attorney knew that the court order of the 12th June
2013 was defective and rightfully disobeyed same.
[10] The applicant
further seeks an order to compel first respondent to comply with the
order of Ranchod. That order has been set
aside and there is
accordingly nothing to compel him to comply with.
[11] The applicant
next seeks an interdict against the first respondent from generating
documents that are aimed at prejudicing
him. The applicant has not
made out a case for either interim or final interdictory relief. No
facts have been established in
support of that relief. Accordingly
that request must also fail.
[12] Lastly he seeks
an order against the Law Society to investigate. He has submitted no
proof that the Law Society is in fact
not doing so. However, no case
has been made for such a relief.
[13] Accordingly the
order that I make is as follows:
The application is
dismissed and the applicant is ordered to pay first respondent’s
taxed party and party costs.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPLICANT: IN
PERSON
21 DUNNEWELS
COMPLEX
7 MAIDEN STREET
ROBINDALE
RANDBURG
RESPONDENT: ADV G
STEYN
INSTRUCTED
BY: BICCARI,BOLLO&MARIANO ATTORNEYS
Tel: (011)
628-9300
Fax:
(011)788-1736
Ref: M
Hinz/rv/RD1873
DATE OF HEARING:
3RD MARCH 2014
DATE OF JUDGMENT:
25TH MARCH 2014