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[2015] ZAGPJHC 245
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Lin and Another v Cathay Pacific Airways Ltd and Another (2014/22434) [2015] ZAGPJHC 245; [2016] 1 All SA 543 (GJ) (14 October 2015)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/22434
DATE:
14 OCTOBER 2015
In
the matter between:
HAI
LIN
...............................................................................................................................
1
ST
Applicant
RUIHONG
WENG
.............................................................................................................
2
nd
Applicant
And
CATHAY
PACIFIC AIRWAYS
LTD
..............................................................................
1
st
Respondent
JONES,
SHIRLEY
..........................................................................................................
2
nd
Respondent
JUDGMENT
SPILG
J;
INTRODUCTION
1.
The case concerns the appropriate sanction
to be imposed on the respondents pursuant to an order made on 18
November 2014 in which
they were held to be in contempt of several
court orders.
2.
I found that Cathay Pacific Airways Ltd
(‘
Cathay Pacific
‘)
was in contempt of three orders granted by my brother Wright J;
a.
The
first order was made at about noon on Saturday 26 July 2014 and
interdicted the airline from removing the applicants’
two minor
children, then 14 and 15 years of age, from South Africa,
although their parents were resident in South Africa;
b.
The second order was granted later on the
same day when it became evident that the children had been boarded
onto the Cathay Pacific
flight which had departed at 12h30. In terms
of this order Cathay Pacific was required to effect the immediate
return of the two
minor children and to secure their attendance at
court on Monday 28 July;
c.
The third order was granted on Monday
28 July. Cathay Pacific was again directed to immediately return the
minor children
to South Africa and the order was extended to
include the return of the eldest child who had also been
boarded onto
the flight with his younger siblings.
Ms
Shirley Jones, the responsible manager, was held to be in contempt of
court in relation to the second order granted on
26 July and
also the subsequent one granted on 28 July.
3.
The decision is reported in
Lin
and another v Minister of Home Affairs and others
2015(4)
SA 197 (GLD);
[2015] 1 All SA 335
(GJ). It is therefore unnecessary
to repeat the facts of the case in detail.
4.
Cathay Pacific is the first respondent. It
was the third respondent in the main proceedings.
Jones
was not one of the original parties cited. However she had claimed to
be the most senior person at the Cathay Pacific offices
when the
second and third orders were communicated.
On
15 August a
rule nisi
was
issued calling on her to show cause at the hearing of the
application, set down for the week of 9 September 2014, why she
should
not personally be held in contempt for failing to comply with
the two court orders. A rule was also issued against a Mr
Mashoene
(who was originally identified as Mr Mashile).
5.
After considering the papers and hearing
argument Cathay Pacific was held to be in contempt
of all three of the
court orders and Jones in respect of the of the
latter two. I also found that Cathay Pacific’s averments
exculpated
Mashoene of wilful conduct in failing to
comply with the first court order.
6.
Since neither Cathay Pacific nor Jones had
yet been required to address the court on an appropriate sanction the
order holding them
in contempt also required them to show cause why
substantial fines should not be imposed and why Cathay Pacific should
not be obliged
to provide a one way airline ticket from Hong Kong to
OR Tambo International Airport (‘
OR
Tambo’
) for each of the children
at an appropriate class considering that their departure had not been
voluntary.
The
order issued on 18 November 2014 therefore also covered these issues.
It read:
1.
The Third Respondent
(ie the First
Respondent in the current proceedings)
is
held to be in contempt of the court orders granted on 26 July 2014 by
Wright J under case number 2014/22434 in that;
a.
it boarded the applicants’ two minor children, [Z…….]
and [L……] onto flight CX748and did not
disembark them
despite the interdict preventing it from boarding the said children,
b.
it did not return the said children to OR Tambo International Airport
on a Cathay Pacific flight departing from Hong Kong despite
the
second order granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
2.
The Third Respondent is held to be in contempt of the court orders
granted on 28 July 2014 by Wright J under the said case number
in
that;
it
did not return the applicant’s eldest child Xuefeng to OR Tambo
International Airport on a Cathay Pacific flight departing
from Hong
Kong despite the order granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
3.
Ms Shirley Jones is held to be in contempt of the second court order
granted on 26 July 2014and the order granted on 28 July
2014 by
Wright J under the said case number in that;
she
did not cause Cathay Pacific to return the applicant’s three
children to OR Tambo International Airport on a Cathay Pacific
flight
departing from Hong Kong despite the orders granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
4.
The counter-application brought by the Third Respondent is dismissed
5.
The Third respondent is to pay;
a.
the costs of the application to date, including all the reserved
costs on the scale as between attorney and client;
b.
the costs of the counter-application brought by it on the scale as
between attorney and client
6.
The sanctions to be imposed on the Third Respondent and Jones for
their contempt of the court orders are the payment of fines.
7.
The Third Respondent is to show cause to this court on Wednesday 10
December 2014 before Spilg J at 10H00 or so soon as the matter
can be
heard why it should not be;
a.
fined for its contempt of the court order of 26 July 2014 in a
significant sum;
b.
fined for its contempt of the second court order of 26 July and the
order of 28 July 2014;
i.
in a sum equal to the cost of a premium economy class ticket for each
of the applicants’ three children on a scheduled
Cathay Pacific
passenger flight from Hong Kong to OR Tambo International Airport;
ii.
in a further sum payable weekly commencing on Friday 22 November 2014
for so long as it fails to comply with the orders and
fails to return
all the children to Johannesburg on a Cathay Pacific flight as
aforesaid;
c.
ordered to pay the costs of these further proceedings on the scale as
between attorney and own client
8.
Jones is to show cause to this court on Wednesday 10
December 2014 before Spilg J at 10H00 or so soon as the matter
can be
heard why she should not be fined for her contempt of the second
court order of 26 July and the order of 28 July 2014 in
a significant
sum of money relative to her salary and position at the time;
9.
The Third Respondent and Jones shall file their affidavits by no
later than Monday 1 December 2014. The affidavit of the Third
Respondent must include;
a.
the annual financial returns of the Third Respondent for the last two
years as required to be submitted in terms of South African
company
and tax laws
b.
details of the current airfare for a one way Cathay Pacific airline
ticket on its scheduled passenger airline flight from Hong
Kong
International Airport to OR Tambo International Airport Johannesburg
for a person twelve years and older on business class,
premium
economy class and economy class;
c.
details of the cost of delaying an aircraft from its slotted
departure flight time before the aircraft doors have been closed
where a passenger and his or her baggage must be located and taken
off the flight;
d.
details of the cost of aborting the take-off of a flight, once the
aircraft doors are closed and the gantries, jet bridges or
stairs
have been withdrawn, in order to have a passenger disembark with his
or her luggage
e.
the pay package and monthly salary slips of Jones for the last twelve
months
10.
The Applicant shall file any affidavit in answer by no later than
Thursday 4 December 2014;
11.
The Third Respondent and Jones shall file any affidavit in reply by
no later than Monday 8 December 2014
12.
The Third Respondent shall index, paginate and bind the papers by no
later than Monday 8 December 2014.
7.
In compliance with the court order the
respondents’ subsequent affidavits also contained certain of
the details required under
para 9. These included the annual
financial returns of Cathay Pacific, its current airfares for a one
way airline ticket from Hong
Kong to OR Tambo and some details
regarding the type of costs that might be incurred if an aircraft was
delayed from taking off
at its allotted departure time, the cost of
aborting the take-off of a flight and the pay package together with
monthly salary
slips of Jones.
8.
In order to determine the appropriate
sanction it will also be necessary to characterise the type of
contempt under consideration
and to deal with the factors that should
be taken into account. In my view the enquiry ought to have
regard to the interests
that are sought to be protected, the reason
advanced for not complying with the court order and any other
relevant circumstance
that ought to be taken into account whether of
a mitigating or an aggravating nature when considering an
appropriate penalty.
THE
ORIGINAL APPLICATION OF 26 JUNE 2014
9.
During 2008 the applicants, Mr Lin
and his wife, obtained permanent residency in South Africa. They
alleged that on the same date
permanent resident permits were also
issued to their three children.
10.
It was not disputed that the applicants had
travelled abroad together with their three children on several
occasions since 2008
without experiencing any difficulties with
immigration officials upon re-entering the country.
11.
On the evening of 25 July 2014 when
the three children arrived at OR Tambo aboard a Cathay Pacific
Airways flight from Hong
Kong immigration officials refused to allow
the two younger children entry into South Africa on the ground that
their residence
permits were not reflected on the data base of the
Department of Home Affairs (’
Home
Affairs
’). They also concluded
that the permits were fraudulent. The children were then held at a
facility within OR Tambo operated
by ARM-Analytic Management which
was the Fourth Respondent in the original application.
12.
Although the eldest child’s permit
was recorded on the system he too was held in the facility. It later
emerged that he was
denied entry on the ground that he had
accompanied two minors who had produced fraudulent permits.
13.
Lin attempted to engage immigration
officials at the airport but they were adamant that the children
could not enter the country.
Since it was after hours Lin could not
contact the main offices of Home Affairs to satisfy them as to the
veracity of the permits
by reference to their control and other
numbers or to establish why the two permits were not currently
captured on their data base.
14.
The applicants’ attorney, Mr Essop,
attempted to engage immigration officials to allow the two children
entry into the country.
This was also unsuccessful and, after being
informed by them that the children would be placed on the 13H00
Cathay Pacific flight
to Hong Kong, Essop contacted Ms Mlaba, the
registrar of my brother Wright J who was the urgent court duty judge.
The purpose was
to obtain an urgent interdict preventing the children
from being returned to Hong Kong.
The
registrar immediately contacted Wright J who, due to the urgent
nature of a matter affecting minor children, instructed that
Essop
contact him directly. This occurred at about 11H52.
A
few minutes later Essop contacted Wright J. Due to the imminent
departure of the flight (which Essop still believed from the
immigration officials would be at 13H00) the applicants were not able
to prepare papers or reach the court prior to the flight’s
departure.
15.
On the basis of these facts Wright J
granted the first order at about 12H00 interdicting Cathay Pacific
from boarding the two children
on its flight. The order was notified
to Mashoene who was at the Cathay Pacific desk at OR Tambo. He
claimed to be responsible
for boarding the children and advised that
the children had not yet been boarded.
THE
FIRST CONTEMPT (First Respondent only)
16.
The court order could not be delivered in
written form prior to the expected time of the flight’s
departure on 26 July. Accordingly
the court directed that verbal
notification of the order could be given to Cathay Pacific.
.
17.
At about 12h00 both Wright J’s
registrar and Essop informed Mashoene of the order. According to the
registrar he was not co-operative
and this was recorded in my
brother’s brief reasons for granting the order.
18.
Ms Zelda Swart, who Cathay Pacific claimed
was its most senior staff member at the airport on that day, was also
aware of Wright
J’s order before the children, on Cathay
Pacific’s version, were in fact boarded onto the flight.
19.
I held on the facts that although Cathay
Pacific had claimed that Mashoene was not its employee or its agent
but an employee of
Menzies Aviation (Pty) Ltd he was nonetheless a
responsible person acting as the airline’s agent. The reasons
were that;
a.
Mashoene was instructed by a responsible
employee of Cathay Pacific not to provide the contact number of its
senior supervisory
staff member on duty when the judge’s
registrar and Essop informed him of the first order. He therefore was
given the trappings
of authority to receive notification of the court
order on its behalf;
b.
Mashoene was employed by Menzies Aviation
yet he accepted service of the subsequent court orders as the
administration officer at
Cathay Pacific’s offices at OR Tambo;
c.
Cathay Pacific had not been open with the
court regarding the services Menzies Aviation was providing to it and
the function that
Mashoene was actually performing at the airport for
Cathay Pacific. I was satisfied for reasons set out in the previous
judgment
that Menzies Aviation performed not only baggage clearance
on behalf of Cathay Pacific as the latter admitted to, but also
provided passenger services which it had not disclosed. At that stage
the court was not aware of the comprehensive nature of such
services
or the working relationship that would have to exist between Menzies
Aviation and immigration officials.
Cathay
Pacific’s lack of frankness in a matter of direct concern
to the court is a factor that impacts on the appropriate
sanction.
20.
I
held that notification of the order to Mashoene was notification to
Cathay Pacific and that Swart had actual knowledge before
the flight
departed
[1]
. I accept that she
wanted a written copy of the order but that did not alter the
situation when it was sent to an incorrectly noted
address. Swart
could have readily contacted the registrar, whose number she had been
given, to find out why it had not been received.
Swart also claimed
that she was unable to contact her supervisor, who was identified as
Ms Shirley Jones.
Since
it was admitted by Cathay Pacific that Swart refused to comply with
the first order I held that the airline had taken a deliberate
decision to ignore it.
THE
SECOND CONTEMPT (Both Respondents)
21.
At approximately 13H00 Essop attended court
and advised that he had been informed by Swart that Cathay Pacific’s
flight CX748
had departed at 12H30 with the children on board.
22.
Due to the court’s express concern as
recorded in its written reasons regarding the two minor
children who were now
en route
to
Hong Kong and that under section 28(2) of the Constitution “
A
child’s best interests are of paramount importance in every
matter concerning the child’
the
judge contacted Cathay Pacific and spoke directly to Swart.
Wright
J informed Swart to provide reasons why Cathay Pacific should not be
ordered to return the two children to OR Tambo on the
next available
flight. The judge also advised Swart that a proposed draft order had
been prepared in these terms. At that stage
Swart mentioned that her
supervisor was Ms Shirley Jones who she would attempt to contact.
Wright J furthermore informed her that
unless the judge’s
registrar, Ms Mlaba, was told to the contrary an order would be
granted against Cathay Pacific in the
proposed terms.
The
judge also provided Swart with Mlaba’s urgent court cellphone
number.
23.
Cathay Pacific did not dispute that the
court again attempted to contact Swart. She said that she was still
unable to reach Jones
and was not at liberty to provide it with
Jones’ number. The court gave her a further opportunity to
contact a person in
authority at Cathay Pacific and revert
immediately; failing which the order that had been drafted would be
issued.
24.
No one on behalf of Cathay Pacific reverted
within the period directed and some 25 minutes after the last
discussion at 15h20 the
order was granted. The judge noted that no
one on behalf of Cathay Pacific had responded even by 16h40 when the
written reasons
for judgment were finalised.
25.
The second court order read;
1.
The third respondent is to return to
OR Tambo International Airport the children, [Z……..]
[L…….] (with
date of birth [1…..] [A…….]
[1…..] and passport number [G3……..]) and [L……..]
[L……] (with date of birth 22 November 2000 and passport
number [G3……..]) on the first available Cathay
Pacific
flight from Hong Kong to OR Tambo International Airport.
2.
The first and second respondents are
ordered to admit the children to South Africa.
3.
The first and second respondents are
interdicted from deporting the children unless the first and second
respondents have a court
order to that effect.
4.
The first, second, fourth and fifth
respondents are ordered to hold the children at the fourth
respondent’s holding facility
at OR Tambo international Airport
until:
4.1
There is a court order to the contrary or
4.2
they are released into the custody of the applicants at the option of
the first and second respondents.
5.
The respondents are to allow the
children to be visited by the applicants and the applicants’
legal practitioners immediately
on the children’s arrival at OR
Tambo International Airport.
6.
This case is postponed to 14H00 on
Monday 28 July 2014 in front of Wright J.
7.
The second to fifth respondents are
to bring the children to court for the hearing at 14H00 on Monday 28
July 2014 before Wright
J, High Court building, corner Pritchard and
Kruis Streets, Johannesburg, Court 9F.
8.
The question of costs reserved.
26.
I
accepted that the order was not received by Cathay Pacific since it
was emailed to an incorrect address. However I was satisfied
that
Cathay Pacific and Jones had express knowledge of the existence of
the order and that suffices in contempt cases
[2]
.
It is difficult to comprehend a clearer case of knowledge of the
existence of a court order than in the present case where the
party
is informed by the judge directly that if no-one reverts to his
registrar within a given time then an order would be granted
for the
return of the two minor children on the next available flight and
that the matter would be dealt with in court on Monday
28 July.
27.
Swart did not claim that she withheld from
Jones her knowledge that the court order would be issued if she or
Jones failed to revert
forthwith as directed by the judge. They do
not claim that for whatever reason the judge was somehow not to be
taken at his word
if they did not revert.
28.
By Monday 28 July the airline had not
returned the two minor children to South Africa.
29.
Once again Cathay Pacific admitted that it
refused to comply with the second order pursuant to a deliberate
decision taken to ignore
it.
THE
THIRD CONTEMPT (Both respondents)
30.
The matter was duly called on Monday 28
July 2014. There was no appearance on behalf of any respondent nor
had any answering affidavits
been served.
The
court was informed that the eldest child had also been placed on the
flight to Hong Kong with the two younger children. The
court then
made the following order;
1.
The third respondent is to return to
OR Tambo International Airport, on the first available Cathay Pacific
flight, the 19 year old
Lin Child, Xuefeng Lin, born 24 June 1995
with passport number [G………].
2.
The first and second respondents are
ordered to admit the said 19 year old Lin child to South Africa.
3.
The first and second respondents are
interdicted from deporting the said 19 year old Lin child unless the
first and second respondents
have a court order to that effect.
4.
The first, second, fourth and fifth
respondents are ordered immediately to return the said 19 year old
Lin child and the child [Z…….]
[L…….],
born [1…….] [A…….] [1……]
with passport number [G………]
and the child
[L……..] [L……], born [2…….]
[N……] [2…..] with passport
number [G…….]
to the care of the applicants.
5.
Cathay Pacific is to return the
three children to OR Tambo International Airport without asking for
payment but subject to Cathay
Pacific’s right later to
institute legal proceedings for the recovery of any money which
Cathay Pacific considered payable
to it.
6.
This case is postponed to 10H00 on
Friday 1 August 2014 in front of Wright J.
7.
The question of costs is reserved.
31.
The court also handed down written reasons.
In
its reasons the court emphasised the protection of the children’s
best interests under s28(2) of the Constitution,
which it
clearly explained underpinned the order requiring Cathay
Pacific to return the children to South Africa on the next
available
flight.
The
written reasons also indicated the court’s concern that either
Mashoene or Cathay Pacific or both were in contempt of
the earlier
court order as the available information indicated that the order had
been brought to their attention prior to the
flight’s
departure. The court also set out in its reasons the contact made by
the judge’s registrar and the judge personally
with the persons
mentioned earlier to whom the orders had been conveyed.
32.
On the following day Essop attended Cathay
Pacific’s offices at OR Tambo in order to serve a hard copy of
the court order
of 28 July 2014 together with the reasons that had
been prepared by Wright J. Swart took both and was about to
sign for receipt
when a fellow employee advised her to take it to
Jones. Essop then waited for some 25 minutes until Jones eventually
came through
and said that she would not sign.
33.
Jones confirmed that she was the most
senior official in charge at Cathay Pacific’s offices at OR
Tambo. A copy of the court
order and reasons were then left on
Swart’s desk. Essop also wrote down the address for the
children in Hong Kong. Swart
refused to receive it. Essop then
contacted the sheriff of Kempton Park. Neither he nor his deputy was
available to serve the documents.
The attorney was able to serve hard
copies on the State Attorney on behalf of the Minister and the
Department.
34.
On 30 July the orders were emailed to
Cathay Pacific’s incorrect address. Nonetheless, as stated
earlier, the order and court’s
reasons had been left at
Cathay Pacific’s offices on the 29th
35.
Despite service of the order of 28 July the
children were not returned to South Africa as directed. Once again
Cathay Pacific admits
that it deliberately refused to comply with the
court order. Jones remained the most senior representative disclosed
by Cathay
Pacific at the time.
THE
CONTEMPT PROCEEDINGS
36.
The court order of 28 July referred to the
case being postponed to 1 August. Cathay Pacific did not file an
affidavit or appear
in court to explain why they had failed to comply
with what had now accumulated to three court orders, each of which
had directed
prompt compliance and one of which comprised a
habeas
corpus
order that would have required
an explanation at court on 28 July since the children were not
produced on that date as required
by the order.
37.
At the 1 August hearing the court indicated
that substantive contempt proceedings would have to be launched but
did order costs
on the scale as between attorney and client against
Cathay Pacific in respect of the hearings on 26 July, 28 July and 1
August
2014.
38.
By 12 August the children had still not
been returned to South Africa despite the court orders directing
Cathay Pacific to do so.
The applicants then launched motion
proceedings in which they sought (in Part A) a
rule
nisi
calling on Cathay Pacific, Jones
and Mashoene to show cause why they should not be held in contempt of
the court orders granted
on 26 and 28 July 2014.
Part
B of the order concerned the Department of Home Affairs. The
applicant sought an order reviewing the determination that the
two
minor children are not in possession of valid permanent residence
permits together with ancillary forms of relief. I
should add
that the proceedings under Part B were not before this court and the
applicants are at liberty to pursue them. To date
the court has only
been seized with contempt of court issues against Cathay Pacific,
Jones and Mashoene.
39.
The matter came before me on 15 August.
Despite service of the application, neither Cathay Pacific nor Jones
or Mashoene appeared
at court. I accordingly issued a
rule requiring them to file papers and attend court on 9 September if
they intended opposing the
contempt proceedings. The order also
contained a provision that if they did not appear in court on 9
September 2014, a writ of
arrest may be issued to take them into
custody, which in the case of Cathay Pacific would result in the
detention of its senior
representative in the country.
40.
On 19 August the sheriff served the
orders. The returns in respect of Jones and Mashoene are instructive
as they reflect that Thabo
Mashoene accepted service at Cathay
Pacific’s offices. In both instances the returns state that
Mashoene identified himself
as the Admin Officer. The sheriff also
stated in the return that Mashoene was the only person present at the
office at the time
of service.
41.
I again presided in court on 9 September
2014. Cathay Pacific filed an answering affidavit deposed to on the
previous day by its
new country manager for South Africa and the
Indian Ocean region, Mr Rakesh Raicar. It also filed a
counter-application to
declare null and void or otherwise set
aside the three orders granted on the 26
th
and 28
th
of July.
42.
After hearing argument I issued the order
set out at the beginning of this judgement.
SUBSEQUENT
AFFIDAVITS
43.
In accordance with the directions set out
in the order a further set of affidavits was filed by the
respondents. In view of certain
statements made in the affidavits the
court requested in addition a copy of the agreements in terms of
which Menzies Aviation provided
services to Cathay Pacific.
44.
Raicar claimed that Cathay Pacific has
never adopted the stance to wilfully disobey any order granted by a
court in any country.
Raicar then stated that “
more
importantly however it is imperative that the Third Respondent
complies with the Immigration Laws of a foreign country…”
45.
In pursuing that theme Cathay Pacific
repeated its stance that without an instruction from a Home Affairs
official its hands were
tied as it had received official notification
that the children had been refused entry. That explanation logically
is limited to
the refusal to comply with the first court order
directing that the children not be embarked on the flight to Hong
Kong. The explanation
is advanced as a mitigating factor.
46.
What Raicar does not deal with is why
Cathay Pacific did not simply state that it would abide the decision
of the court. He also
does not suggest that, when notified of the
court order, Cathay Pacific took any steps to inform immigration
officials that a court
order had just been issued directing that the
children not be boarded onto the flight. As appeared from the
affidavits filed, prior
to approaching the court to stop the children
being boarded onto the flight Essop had contacted Adv Erasmus the
Chief Director
of Legal Services at the Department of Home Affairs
who stated that the children were the responsibility of Cathay
Pacific, that
Home Affairs could do nothing to prevent Cathay Pacific
from placing them on the flight and that he had no other contact
numbers
for immigration officials at OR Tambo.
47.
Accordingly, if Cathay Pacific was
genuinely concerned about complying with our laws it had the means
and was in the physical locality
of the airport to immediately
contact the immigration officials stationed there. If it had
done so then it would have informed
the officials that a court had
just issued a telephonic order preventing the children from being
boarded onto the flight. If this
had been done then one would expect
the officials to convey to Cathay Pacific the same information that
Adv Erasmus had given to
Essop (ie; that it was no longer a concern
of immigration). There is also no reason to believe that immigration
officers would
have informed Cathay Pacific, if the latter was in any
doubt, that court orders are to be obeyed.
48.
The difficulty in the way of Cathay Pacific
is that it did not play open cards with the court. Raicar in
his earlier affidavit
incorrectly tried to claim that no staff member
was aware of the court order prior to the flight departing. I have
demonstrated
that on its own say-so Swart was already aware of the
court order. Moreover Raicar in that affidavit claimed that Mashoene
was
simply a lost property agent employed by Menzies Aviation which;
“
at
times provide personnel in the form of their employees to assist in
regard to certain functions that had to be performed on behalf
of the
Third Respondent
(ie; Cathay Pacific).
Mashoene assists the Third Respondent
generally by handling missing baggage reports and baggage claims. On
the day in question,
Mashoene was at the offices of Cathay Pacific at
OR Tambo ….and was answering the telephone in regard to
baggage claims
and baggage queries. Mashoene is also employed by
Menzies as a Lost Property Agent and in this regard assists persons
whose property
is lost when they arrive … on a flight”
Raicar
stated in the earlier affidavit that by virtue of these facts and
circumstances Mashoene had no authority to give effect
to the court
order on behalf of Cathay Pacific. It was argued that Mashoene could
not bind Cathay Pacific, as he had nothing to
do with embarking the
children on the flight in question, and his refusal to assist cannot
be imputed to Cathay Pacific.
These
allegations were in stark contrast to the reasons for judgment
prepared by Wright J in which he recorded that his registrar
had advised that when she informed Mashoene of the court order the
latter told her that the two children had not yet boarded and
“
confirmed that he was the person
responsible for boarding the children”
.
49.
In view of the subsequent claim that
Mashoene was only responsible for lost property and the apparent
downplaying of Menzies Aviation’s
functions and
responsibilities I required sight of the services agreement to ensure
that I would not be prejudicing Cathay Pacific
at the present leg of
the enquiry which really concerns the mitigating and aggravating
factors that should be taken into account
when imposing an
appropriate penalty.
50.
The agreement between the two companies is
headed “
IATA Standard Ground
Handling Agreement
” and comprises
a main agreement and a number of annexures as well as four subsequent
addenda. Far from Menzies Aviation performing
limited services, the
agreement reveals that Menzies Aviation provides a comprehensive
ground handling service for and on behalf
of Cathay Pacific and in
their place and stead. For present purposes the most significant
service is that of providing or arranging
for assistance to
passengers.
The
agreement expressly mentions assistance to unaccompanied minors,
transit without visa passengers and deportees
[3]
,
and in respect of arrivals to direct passengers from the aircraft
through immigration controls
[4]
.
Menzies Aviation is also to provide or arrange for check-in
positions, service counters and lounge facilities
[5]
.
Their duties in regard to the aircraft departures include check-in
and directing passengers through controls to the departure
gate,
verify travel documents for the flight concerned and enter required
passenger or travel document information into Cathay
Pacific’s
and, where applicable, government systems and carry out seat
allocations
[6]
.
The
main agreement also contains a specific exemption clause excluding
liability for immigration fines in the event of non-bona
fide travel
documents or other events which are outside their control
[7]
.
Annexure
B provides that Menzies Aviation will indemnify Cathay Pacific for
penalty fees assessed against the latter by Immigration
arising from
any negligent act or omission in performing services under the
agreement save in cases where the passenger carries
a false visa or
if a passenger with a valid passport and visa is refused entry for
any other reason.
Attachment
1 which is termed a ‘
Service
Level Agreement’
provides that on arrival Menzies Aviation should direct passengers to
customs and immigration or the transit desk and provide assistance
for passengers with Customs or Immigration problems. It also provides
that their agents are to be ‘
visible
and available at all times to attend passengers’ problems’
[8]
Menzies
Aviation are also to provide a minimum of one supervisor and three
agents per flight at the boarding gate sufficiently in
advance of
boarding to attend to passengers’ queries and to perform
boarding functions
[9]
. It is
also obliged to adequately man counters for handling the transfer
passengers. Furthermore the transfer desk must be manned
at all times
during Cathay Pacific’s operations at the airport
[10]
51.
It is evident that Raicar sought to mislead
the court in regard to the functions of Menzies Aviation as the
airline’s effective
surrogate and also regarding its
interaction with immigration officials in respect of both arriving
and departing passengers. Since
Raicar did not suggest that anyone
more senior than Mashoene was present on behalf of Menzies Aviation
to handle passengers through
customs and immigration formalities it
is evident that he would have been in a position to communicate
directly and immediately
with immigration officials when informed of
the court order. He would also have been in a position to act as an
intermediary between
immigration officials and his superiors or
Cathay Pacific’s staff.
52.
It therefore appears that Cathay Pacific
was not frank with the court when ordered to show cause why it and
Jones should not be
held in contempt of court. It appears that Cathay
Pacific wished to avoid explaining why it did not immediately
approach the immigration
officials and speak to their superiors or
simply advise that they had been informed of the court order and were
considering abiding
the decision. There is nothing in the affidavit
to suggest that they had even bothered to approach immigration
officials. The failure
to do so when informed of a court order and
when on any basis there could be no adverse repercussions by
complying with the order,
or at least establishing whether there
might be any adverse consequences, are aggravating factors-
particularly bearing in mind
the standing of Cathay Pacific as a
leading international airline serving almost 50 international
destinations and with landing
rights at 188 airports. It would be
facile to suggest that Cathay Pacific was unaware of the import of a
court order, or somehow
felt reluctant to approach immigration
officers who were in close proximity and with whom they have daily
contact.
53.
There are a number of other aggravating
features with regard to the failure to comply with the first court
order. The children are
minors and it was evident to Mashoene that
their parents were not in Hong Kong but in South Africa. One of the
functions of Menzies
Aviation is to provide assistance to
unaccompanied minors. They would therefore be expected to appreciate
the consequences to the
children and how their interests are affected
if they are forcibly parted from their parents. Cathay Pacific also
had a copy of
the court’s reasons which reflected that it
sought to protect the constitutional rights of minors whose parents
were not
accompanying them and where the children’s best
interests were determined to govern at least until the issue could be
ventilated
in court. This was not a simple issue over goods or
chattels.
54.
The nature of the right the court was
seeking to protect and which Cathay Pacific ignored is a fundamental
constitutional right
and a right embodied in many international
instruments of which Cathay Pacific ought to be aware. In addition
the court was not
simply resolving issues between parties; it was
obliged in considering the exercise of its powers to act in its
capacity as upper
guardian of children. Accordingly the nature of the
rights infringed by Cathay Pacific’s failure to comply with the
court
order is a further aggravating factor.
55.
Cathay Pacific claimed that it was “
placed
in the invidious position between the immigration laws of South
Africa, the instructions of the Department of Home Affairs
... on the
one hand and the Court process that had been issued by the …
Court on the other hand.
This
is a conclusion unsupported by any facts. Nowhere does Cathay Pacific
suggest that the personnel at the airport , whether
its own Ms
Swart or that of Menzies Aviation (as its effective proxy under the
service agreement), engaged immigration
officials who
would have been on duty and presumably in ready contact with their
superiors to inform them of the contents of the
court order. It
is not suggested that they were not able to make prompt enquiries
regarding the status of a court order.
According to Raicar, who only
took up his post in South Africa on 18 August 2014, the first time
Cathay Pacific engaged legal representatives
was approximately during
that week of 18 August. In my view this further reflects a disdain
for the court and its order by those
in charge. In particular they
did not bother to establish whether they were entitled to act in the
manner they did until after
four court orders had been issued.
56.
The court has the distinct impression that
Cathay Pacific took a calculated decision to ignore the court order
in the hope that
once the horse had bolted that would be the end of
it, and if the applicants could demonstrate that their children were
entitled
to reside in South Africa then they would make their own
arrangements for the children’s return.
57.
Insofar as the failure to comply with the
other two orders is concerned Cathay Pacific relies
on the advice of
their attorney Mr Assenmacher. The advice was
that the orders were null and void which entitled Cathay Pacific to
ignore
them. This view finds no support and Adv Pincus was unable to
refer me to any case law upon which Mr Assenmacher could have relied
to support his conclusion. Moreover this explanation does not
account for the position taken by Cathay Pacific between 26
July and
18 August to ignore two court orders directing that the children be
returned on the next available flight.
58.
I have already mentioned that it does not
assist the respondents to contend in relation to the second and third
orders that immigration’s
direction to repatriate the children
trumps a court order. The court orders in their terms also directed
Home Affairs to admit
the children into the country and not to deport
them unless under a subsequent court order. The orders were served on
the State
Attorney.
59.
Accordingly it would have been evident to
those in authority at Cathay Pacific that they could simply contact
Home Affairs and receive
confirmation that it was not opposing the
orders. To this day Home Affairs has not attended court or filed
papers to set aside
any part of the orders concerning it.
60.
Accordingly, for over half a month until
the week of 18 August Cathay Pacific took no steps to comply with the
two subsequent orders.
It was given an opportunity to explain why it
did not do so during this period. On a proper analysis none is
forthcoming since
the only time when it claimed to be aware that the
two orders could be ignored was on receiving the belated advice.
61.
There are a number of aggravating features.
First is that Cathay Pacific did not bother to engage any lawyers to
attend court on
28 July or on 1 August to explain its position. It is
difficult to comprehend that any responsible international company
which
has engaged a specialist ground handling agent would simply
ignore court orders or believe that they would be immune from any
consequences
if they failed to attend court when given the
opportunity; and not just once.
62.
In my view this demonstrates that the
original disdain for the court’s order was not isolated but
appears institutionalised
within the management of Cathay Pacific and
all those responsible for taking the decisions not to comply with the
court orders
and the further decisions not to attend court. Once
again these are significant aggravating factors.
63.
There are a number of further disturbing
features which reflect adversely on the attitude to the court and its
processes by Cathay
Pacific and Jones, as its most senior disclosed
official at the time.
On
29 July the applicants’ attorney attempted to serve the court
order of 28 July together with the judge’s reasons.
It will be
recalled that Jones would have been aware that the judge had directed
that the two minor children be brought before
court on the previous
day, yet no explanation was forthcoming from Cathay Pacific as to its
failure to enable that to occur.
Moreover
Swart was about to accept service of the order and the court’s
reasons when she was advised to take them to Jones.
Jones then
refused to receive the documents. In the most recent affidavit Raicar
explains that Jones refused to sign for or accept
the court order as
she did not believe that Cathay Pacific was bound by it as the issue
was between Home Affairs and the applicants.
Jones
had identified herself to the applicants’ attorney as the most
senior official in charge at Cathay Pacific. In the answering
affidavit Raicar did not dispute that she was the most senior person
then present in South Africa but claimed that she had received
instructions from Lau, the then country manager as set out
earlier for South Africa and the Indian Ocean region, not
to
accept documentation or get involved in the matter any further.
No
explanation is offered as to why the receipting of a court order that
was directed at a number of parties could simply be declined
by one
of them even on the ground alleged. A court order is a process. It
lay in Cathay Pacific’s hands to attend court on
1August, as
directed in the order, to explain to the court why the order was not
binding and why it should not be cited. Again
no explanation is
offered as to why it did not simply engage attorneys to do so.
The
inference is overwhelming that Cathay Pacific adopted a contemptuous
attitude to the court and its orders. It would not abide
by them. It
would not explain to the court why it so refused nor did it seek
professional legal advice at that time. It is equally
clear that it
considered itself immune from this court’s processes and the
consequences of its actions since it did not even
bother to engage
attorneys until it’s senior manager was faced with the real
threat of arrest if it again failed to appear
in court. An
international company should not be compelled to show its face in
court only under threat of arrest of its officials.
Orders are
obliged to be respected and complied with unless set aside.
64.
It is clear that Jones falls out of the
picture once Raicar takes up his position. It is also evident that
she was under instructions.
However she did not disclose this at the
time the application was launched. She was made the face of Cathay
Pacific and effectively
ensured that no one else in the organisation
who had taken the decisions that appeared to emanate from her would
be implicated.
65.
There is no explanation offered as to why
she did not tell Lau that she was obliged to accept court documents
or request that legal
advice first be obtained.
66.
The cavalier attitude of Cathay Pacific to
court orders and its processes continued to manifest itself when
Cathay Pacific did not
attend court on 15 August when the contempt
application was set down and is unlikely to have bothered engaging
attorneys even by
then (for otherwise there would have been an
appearance). In order to secure its attendance the order that appears
in para 33 of
my earlier judgment was made.
67.
Until forced to attend court under risk of
its senior manager being arrested, Cathay Pacific simply disregarded
every court order
and date of hearing. This was disrespectful to the
court and its functions.
NATURE
OF THE CONTEMPT
68.
In recent times our courts have been
obliged to reiterate the need for respecting and implementing its
orders.
69.
Most recently in
Pheko
the Constitutional Court correlated the
principles that underlie respect for court orders. Nkabinda J said in
the opening paragraphs
to the judgement;
[1]The
rule of law, a foundational value of the Constitution, requires that
the dignity and authority of the courts be upheld. This
is crucial,
as the capacity of the courts to carry out their functions depends
upon it. As the Constitution commands, orders and
decisions issued by
a court bind all persons to whom and organs of state to which they
apply, and no person or organ of state may
interfere, in any manner,
with the functioning of the courts. It follows from this that
disobedience towards court orders or decisions
risks rendering our
courts impotent and judicial authority a mere mockery. The
effectiveness of court orders or decisions is substantially
determined by the assurance that they will be enforced.
[2]
Courts have the power to ensure that their decisions or orders are
complied with by all and sundry, including organs of state.
In doing
so, courts are not only giving effect to the rights of the successful
litigant but also and more importantly, by acting
as guardians of the
Constitution, asserting their authority in the public interest. It is
thus unsurprising that courts may, as
is the position in this case,
raise the issue of civil contempt of their own accord
70.
In
Pheko
at
para 26 the Constitutional Court emphasised the provisions of section
165 of the Constitution, which it said “
vouchsafes
judicial authority”
and provides
that “
no person or organ of state
may interfere with the functioning of the courts. The Constitution
explicitly enjoins organs of state
to assist and protect the courts
to ensure their independence, impartiality, dignity, accessibility
and effectiveness
”.
The
court drew specific attention to section 165(5) which expressly
confirms that under our constitutional dispensation a court
order is
binding on “
all persons
to whom and organs of state to
which it applies”.
71.
In the present case this court took the
view that it should not countenance the undermining of an order,
albeit in a civil judgment,
because of its broader effect on the
administration of justice. Moreover the orders relate to the
interests of minors which the
court as upper guardian is obliged to
safeguard.
Cathay
Pacific flouted three court orders, two of which were issued as a
direct result of it taking a conscious decision to disregard
the
first. Despite its protestations of a genuine belief that the orders
were ineffective, it did not bother to engage attorneys
or attend
court when the orders specifically afforded it the opportunity to do
so and put its position forward.
In
my view it did not do so because it knew the outcome. This is the
only reasonable inference that can be drawn from its failure
to
attend court and its deliberate instruction to senior local
management to do absolutely nothing, not even to accept a court
order. According to the original affidavits filed, prior to engaging
attorneys only Jones is alleged to have formed a view on behalf
of
Cathay that the court orders were not binding. In the set of recent
affidavits that position has been revised to one where she
was always
acting on instructions. Cathay Pacific therefore chose not to provide
an explanation under oath from the person in management
or on the
executive who actually took the decision to ignore the court orders.
The lack of transparency, want of an explanation
through competent
evidence and a failure of accountability are further
aggravating features.
These
various factors demonstrate a degree of arrogance and perceived
inviolability on the part of its executive officers and a
disregard
for the rule of law that beggars belief. I concluded that Cathay
Pacific acted deliberately and intentionally with no
honest belief
that it was entitled to disregard the court’s lawful
orders
[11]
.
72.
In
my view this is a case where Cathay Pacific is required to answer to
the court for its conduct and its violation of section 165
of the
Constitution
[12]
and to pay a
commensurate penalty based on its culpability, the intention with
which it committed the contempt, the attempted justification
(or want
thereof) and whether it intended to remedy the situation. Moreover it
was necessary to secure implementation of the original
court orders
either directly or by providing the applicants with its monetary
equivalent
[13]
. I also
considered that the children should not be obliged to travel economy
class for such a lengthy journey when such a trip
would not have been
necessary if the original order had been complied with.
73.
I have already mentioned the opportunities
afforded to Cathay Pacific to remedy its contempt of the original
order by appearing
in court and explaining its position if genuinely
held. It was afforded three opportunities to do so and eventually had
to be forced
into court under threat of the arrest of its most senior
manager. Only when it was obliged to deal with the appropriate
penalty,
and then very belatedly, did Cathay Pacific tender to return
the children on a flight at its expense.
74.
It is difficult to comprehend how an
airline which does not claim that every flight from Hong Kong to
Johannesburg since 26 July
was fully booked could not have considered
the commercial and reputational consequences of not finding a
suitable solution at little
or no expense to itself. In my view this
further supports the corporate arrogance of the airline and the
intent with which it disregarded
the court orders and refused to
attend court when directed. Moreover it was directed together with
Home Affairs to bring the children
to court on the 28
July.
.
One would have expected that a
habeas
corpus
order of this nature would be
taken seriously and that its gravity would result in counsel being
engaged to explain why the children
would or could not be brought to
court. Its failure to do so is a further demonstration of its high
handed approach to the law
and legal institutions.
75.
I also reject the professed reliance on the
legal advice of Cathay Pacific’s attorney. It also
appears that engaging
attorneys was an afterthought by Cathay Pacific
under threat of the arrest of the senior manager. After hearing
argument I do not
accept that he could have seriously held the view
he professes. Nor was it claimed that he was unaware of the
provisions of Section
165 of the Constitution. He is reminded that as
an officer of the court he has a duty to uphold the administration of
justice.
And at best for the attorney, if he was out of his depth
then he should have told his client as much and engaged counsel.
In my view no practicing attorney in this country and at this time
could have given his client advice that a court order can simply
be
disregarded.
76.
In
my view the penalty must therefore be commensurate with the degree of
the contempt, the intention with which it was committed
and the
interests affected. It must act as a deterrent and be punitive. In a
case of this nature, where executives of a corporate
entity appear to
consider their institution either beyond the reach of the law or
themselves immunised from the consequences of
actions which undermine
the administration of justice and the rule of law the penalty must
also be proportionate; and after taking
into account the means of the
company should not amount to a slap on the wrist
[14]
.
77.
If there was precedent for a high monetary
penalty in contempt cases I would have had little hesitation in
ensuring that the amount
was not a slap on the wrist if regard is had
to Cathay Pacific’s revenues. It should also be an amount that
would make an
airline think twice before avoiding the inconvenience
of changing a passenger manifest or approaching immigration about a
court
order or have them verify it with the court directly. The
airline never claimed that, when the order was conveyed to Mashoene,
the children had already boarded and could not be taken off the
flight before the gates were closed or the gantries removed.
78.
Even giving Cathay Pacific the benefit of
the belated tender and considering the financial results over the
last three years that
were provided I would have had little
hesitation in considering a fine of between R750 000 to
R1million appropriate.
79.
I am however concerned that such an amount,
where case law does not indicate a fine much beyond R10 000, may
divert attention
away from the principles involved and only focus on
the scale of the fine imposed on an international corporation. I do
not wish
that to occur. However I do not consider the fine I intend
to impose to be misconstrued as the upper limit. Far from it; if the
same set of facts were to arise in a subsequent case I would
seriously consider that the amount should be sufficient to require
the auditors to raise it and that it be a matter requiring
explanation from the board to its shareholders, since ultimately it
reflects on issues of appropriate corporate governance and
responsibility in the broader society.
80.
I have taken into account that there was
the disregard of three court orders aggravated by the failure to
provide the court with
an explanation despite the orders providing
for such a course. There was also the failure of Cathay Pacific to
make frank disclosure
in contempt proceedings by withholding relevant
information of its actual operations and chain of authority, and
having regard
to all the other considerations which are relevant in
this specific case, the imposition of a fine of not less than
R350 000
is justified.
81.
In addition the airline is obliged to
comply with the court order of 28 July and pay a sum equal to the
cost of a premium economy
class ticket for each of the applicants’
three children on a scheduled Cathay Pacific passenger flight from
Hong Kong to
OR Tambo, alternatively the procurement of such tickets
for them.
82.
In the previous order I indicated that a
further penalty would be considered if Cathay Pacific failed to
secure the children’s
return by 22 November 2014. They were not
returned by then and no explanation is provided as to why Cathay
Pacific persisted without
proposing a without prejudice tender
sooner. The tender was only made on 24 November. The airline must
therefore pay a further
sum of R2 000 for the delay between Friday 22
November and it’s the tender of 24 November.
JONES
83.
Jones was in fact the airport manager for
Cathay Pacific. She has been employed with the airline since 2003.
Her responsibilities
are to lead and manage the overall operations at
OR Tambo. She had no authority to make any legal decisions and
referred all such
matters to the country manager, who at the time was
Lau.
84.
Adv Pincus argued that Jones was merely
carrying out the instructions of Lau, thereby diminishing her
culpability.
85.
The difficulty is that in the original
answering affidavit Jones accepted responsibility and claimed that
she herself held the view
that Cathay Pacific was not bound by any of
the court orders; which she contended was a matter between the
applicants and Home
Affairs. It was this belief
and
the instruction not to accept
documentation or get involved which resulted in her refusing to sign
for the court order when service
was attempted by Essop on 29 July.
86.
It was only in the subsequent affidavit
that Jones revealed her limited powers and authority. She effectively
shielded higher management
from responsibility and this would have
been evident to her when the court attempted to engage someone in
authority at Cathay Pacific
on 26 July to secure the return of the
children to South Africa and afford Cathay Pacific an opportunity to
explain its position
and remedy the situation. The court was
effectively blocked by Swart who, it was confirmed, reported directly
to Jones as her superior.
87.
It was therefore Jones who frustrated any
meaningful engagement and who held out to the court, through Swart
and subsequently directly
through Essop, that she was the most senior
responsible person who had the power to make relevant decisions. It
is also evident
that Lau was not in South Africa at the time the two
orders relevant to Jones’ involvement were made. In order for
court
orders to be respected the most senior person in the country
must accept responsibility for corporate decisions. Unless this is
so, remote management would result in there being no accountability
within the court’s jurisdiction for a refusal to comply
with
its orders.
88.
It is unnecessary for the purpose of this
judgement to set out the details of Jones’ actual monthly net
income, save that
it is not high. In my view a total fine of
R2400 in respect of both contempts of court would be proportionate in
the circumstances.
APPLICANTS’
COSTS
89.
In my view the applicants consideration of
the respondent’s affidavits with regard to an appropriate
penalty was necessary
and so too were their appearances and argument
even after the tender was made.
90.
The applicants should not be out of pocket
for assisting the court in the circumstances of the present case.
Accordingly an order
of costs on the attorney and own client scale is
appropriate.
ORDER
91.
On 18 August I consequently ordered that;
1.
The first respondent, Cathay Pacific Airways Ltd, is fined for being
in contempt of the two court orders of 26 July 2014 and
the
subsequent court order of 28 July 2014;
a.
In the sum of R350 000.00; and
b.
In a sum equal to the cost of a premium economy class ticket for each
of the applicants three children on a scheduled Cathay
Pacific
passenger flight from Hong Kong to OR Tambo International Airport,
alternatively the procurement of such airline tickets
for each of the
said children on such flight; and
c.
in the further sum of R2 000 for the delay between Friday 22 November
2014 and it’s the tender of 24 November 2014 to return
the
children to Johannesburg on a Cathay Pacific flight;
2.
The second respondent, Ms Shirley Jones, is fined the sum of R2 400
for being in contempt of the second court order of 26 July
and the
court order of 28 July 2014.
3.
The respondents are required to pay the aforesaid sums respectively
by no later than 30 September 2015
4.
The first respondent is ordered to pay the costs of these further
proceedings on the scale as between attorney and own client.
Date
of hearings:
Date
of order: 18 August 2015
Date
of judgment: 14 October 2015
Legal
representatives
For
applicants: Adv H Waner
Rossouws
Attorneys
For
Third Respondent: Adv S Pincus
Assenmacher
Attorneys
[1]
The
contents of Cathay Pacific’s answering affidavit which
are set out in paras 46 and 49 -53 of my earlier judgment
reveal
that, as one would have expected, Mashoene had immediately informed
Swart of the first court order prior to the children
being boarded.
The information that Swart instructed Mashoene to convey as set out
in para 51 of the judgment makes it perfectly
clear that the flight
had not yet departed and that the children had not yet been placed
on the flight. The subsequent
contradictory statement in the
answering affidavit that Mashoene only informed Swart of the court
order ‘
after
the aircraft had already departed’
was
rejected. It also flies in the face of Swart’s confirmation
that she was already at the boarding gate at about the time
Mashoene
was contacted by the registrar about the terms of the court order.
[2]
Pheko
and others v Ekurhuleni Metropolitan Municipality (no 2)
[2015]
ZACC 10
at para 32 and
Mthimkulu
and another v Mahomed and others
2011
(6) SA 147
(GSJ) at para 16
[3]
Main
agreement Sections2 .1.3
[4]
Ibid
Section 2.3.2
[5]
Ibid
Section 2.1.9
[6]
Ibid
Section 2.2
[7]
Ibid
Section 2.2.3
[8]
Annex
B, Attachment 1 clauses 3.6 and 3.9
[9]
Ibid
clause 4.4
[10]
Ibid
clause 6.1
[11]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at paras 6-9.
[12]
Pheko
at paras 28 and 30. See also
Fakie
at
para 6 and 11
[13]
Pheko
at
paras 28 and 31
[14]
The
earlier judgment in which I held the respondents to be in contempt
did not distinguish between a contempt which might
result in a
committal and one where a fine was to be imposed. The decision
adopted the higher test of proof beyond a reasonable
doubt. I
found that each respondent intended to ignore the orders in
question, subjectively foresaw the real possibility
that the orders
were genuine in which case they could not be ignored and reconciled
themselves to the possibility that the orders
were in fact genuine.
This was sufficient to satisfy the requirements of intent in the
form of
dolus
eventualis.
Since
only a fine has been considered the degree of proof of intent is on
a balance of probabilities. See
Pheko
at
para 37 and
Mthimkulu
at para 18.
.