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[2015] ZAGPJHC 266
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Cathay Pacic Airways Ltd and Another v Lin and Another, In re: Lin and Another v Minister of Home Affairs and Others (2014/22434) [2015] ZAGPJHC 266 (11 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/22434
DATE:
11 NOVEMBER 2015
In
the matter between:
CATHAY
PACIFIC AIRWAYS
LTD
.....................................................................................
1
st
Applicant
JONES,
SHIRLEY
..............................................................................................................
2
nd
Applicant
And
HAI
LIN
...........................................................................................................................
1
ST
Respondent
RUIHONG
WENG
..........................................................................................................
2
nd
Respondent
In
re:
HAI
LIN
...............................................................................................................................
1
ST
Applicant
RUIHONG
WENG
.............................................................................................................
2
nd
Applicant
And
MINISTER
OF HOME AFFAIRS- MR
GIGABA
........................................................
1
st
Respondent
DEPARTMENT
OF HOME AFFAIRS- MKUSELI
APLENI
....................................
2
nd
Respondent
CATHAY
PACIFIC AIRWAYS
LTD
..............................................................................
3
rd
Respondent
ARM-
ANALYTIC
MANAGEMENT
............................................................................
4
th
Respondent
ACSA-AIRPORTS
COMPANY SOUTH
AFRICA
......................................................
5
th
Respondent
JUDGMENT-
LEAVE TO APPEAL
SPILG
J;
THE
APPLICATION
1.
This is an application for leave to appeal.
The first applicant was the third respondent in the initial contempt
proceedings brought
by the present respondents. To avoid confusion it
will be referred to by name. The second applicant, Ms Jones,
was subsequently
revealed as the senior responsible manager whose
identity the airline was prepared to disclose at the relevant time.
This resulted
in the contempt proceedings not being pursued against
the individual who had initially been cited. Jones was then made a
party
to the contempt proceedings through the issue of a rule nisi
and given an opportunity to show cause why she should not be held in
contempt of two of the three court orders issued by my brother Wright
J.
2.
Although the present application is brought
only in the name of the original third respondent it appears that the
intention was
also to apply for leave on behalf Jones. After a brief
adjournment Adv
Waner
confirmed
that there was no objection to the present application also being
proceeded with on behalf of Jones.
3.
There are some 48 grounds of appeal. They
range from a claim that the orders granted by Wright J were a nullity
because there was
neither a notice of motion to support the initial
application to stop the children boarding the flight, nor a
written court
order to that effect, to a contention that the
requisites of each element of contempt was not demonstrated;
and from
Wright J being precluded from granting the second order on
the grounds that he was
functus officio
to this court having imputed knowledge to Cathay Pacific when
there was no evidence that its controlling mind was aware of
the
orders.
4.
At the hearing,
Adv
Stockwell
on behalf of Cathay Pacific
and Jones advised that all the grounds of appeal were persisted with.
However when requested to deal
with the issue of the fines imposed,
he confirmed that they were not appealing the fines or sentences
imposed; only the orders
made holding the present applicants to be in
contempt.
GROUNDS
RAISED FOR THE FIRST TIME
5.
The grounds cover a number of issues that are now
raised for the
first time and generally concern the manner in
which Wright J dealt with the matter procedurally and substantively.
They include
whether or not the court could entertain the
matter without a notice of motion, whether contempt proceedings can
be entertained
if an order is only telephonically communicated by the
court to the person representing a respondent, but who refuses to
provide
contact details of anyone else in authority, or where no
order is subsequently typed out and where hearsay allegations are
relied
upon to grant an order without affording the respondent an
opportunity to respond.
6.
These
grounds form the basis for the main submission that, aside from the
question of whether the appeal has reasonable prospects
of
success
[1]
, the Supreme Court of
Appeal should consider laying down parameters both in regard to how
an urgent application is to be brought
and how an order is to be
communicated in order to be effective; this would include whether a
notice of motion is a prerequisite
and whether the import of the
order can be simply communicated by the court telephonically.
In
this regard the applicants rely on
section 17(1)(a)(ii)
of the
Superior Courts Act 10 of 2013
which allows this court to grant
leave to appeal if it is of the opinion that “…
there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration”
7.
The judgment of Flemming DJP in
Gallagher v Norman's
Transport Lines (Pty) Ltd
1992 (3) SA 500
(W) was the only case
referred to in support of the contention that the filing of a notice
of motion is a
sine qua non
before a court will entertain any
urgent application.
In
that case an application was launched on 10 January 1992 to declare
the applicant an employee despite his purported dismissal
as managing
director on 13 December the previous year. The timing alone
demonstrates that the court was not concerned with a case
of pressing
urgency such as the present (let alone one involving the violation of
fundamental rights of freedom and the child).
Moreover
the court’s focus in
Gallagher
was
to criticise the use of the short form notice of motion (Form 2) as
the template in urgent applications where prior notice is
not
dispensed with and to adopt the long form notice (Form
2(a)) or the amalgamation of both, suitably adjusted, in
a
single notice of motion
[2]
. This
case led to the Part A and Part B single notice being adopted as
standard practice in this division.
8.
Gallagher
does not address the question of whether a notice of
motion is peremptory irrespective of the exigencies that may prevent
the court’s
pronouncement reaching the respondent before it is
too late. If it were so then form would be rendered more important
than providing
court protection and one would have expected the court
to deal with that consequence in some detail.
It
is evident that the gravamen of the decision, which is to be found at
502G-H, does not support the applicants’ contention.
It reads;
“
the
intent of the Rules is that such amendment is permissible only in
those respects and to that extent which is necessary in the
particular circumstances. I use the word 'necessary' in its ordinary
signification, but naturally in relation thereto that evidence
shows
'real loss or disadvantage if he is compelled to rely solely on
the normal procedure'. The Court is enjoined by
Rule 6(12)
to dispose
of an urgent matter by procedures 'which shall as far as practicable
be in terms of these Rules'. That obligation must
of necessity be
reflected in the attitude of the Court about which deviations it will
tolerate in a specific case.”
9.
It
should be clear that the application of the fundamental principle of
our judicial system, as confirmed in the seminal High Court
of
Parliament case by Centlivers CJ in
Minister
of the Interior and another v Harris
1952(4) SA 769 (AD) at p781A-B remains that where a right has been
infringed the court will provide an effective remedy
[3]
.
10.
A fortiori,
procedures, as long as they properly balance
competing rights and interests including the right to be heard, must
yield to
securing an order that does not risk frustration
through procedural delay. In the present case the provisions of
rule
6(12)
(c) were always available to Cathay Pacific. It elected to
ignore the rule or not to engage attorneys to advise them of the
course
to follow; until senior management was forced by a court
order under pain of arrest- itself a factor which reinforces
the contemptuous behavior of the airline towards the court.
11.
The practice in this division has, for as long as I have been in
practice, allowed a party to approach the court in extremely
urgent
cases without a notice of motion, permitted the reception of hearsay
evidence through counsel or an attorney over the telephone
and has
permitted service by the court’s registrar or even by the
attorney contacting the respondent or its representative
telephonically and advising of the order. Adv Waner confirmed that he
has obtained orders in extremely urgent cases without a notice
of
motion. Aside from the court being obliged to provide a remedy which
is effective, it also remains a fundamental principle that
the rules
are made for the court, not the court for the rules.
12.
In
Lourenco
v Ferela (Pty) Ltd (No 2)
1998 (3) SA 302
(T) Southwood J was prepared to countenance an
application for urgent relief without a notice of motion and solely
on the
basis of senior counsel informing the court orally that
the applicant sought to set aside an Anton Piller order
[4]
. It was only when the respondent agreed to modify the terms of the
Anton Piller that urgency was dissipated and the matter could
be
postponed for the filing of a notice of motion (as well as
affidavits). It is evident from the judgment that there was no
question
of the applicant being non-suited in the absence of a
notice of motion if the respondent had not acquiesced to modify its
original order
[5]
.
In
the present case Cathay Pacific did not agree to delay boarding the
children until papers could be filed.
13.
A notice of motion is always desirable and can be insisted upon
by the presiding judge. But, as practice and reality demonstrate,
there may be no time even for that.
14.
Ultimately the judge presiding in the urgent court
decides what procedures may be dispensed with and the extent
to which
and from whom hearsay evidence may be received; even where the entire
facts are conveyed over the telephone by counsel
and even where the
entire proceedings take place over a telephone conversation between
the legal representative and the judge because
there is insufficient
time to physically appear before that judge.
The
court does so in order to enforce a right or protect an interest in
circumstances where, having regard to when the invasion
or
transgression may occur, time may not permit the preparing of a
notice of motion and any order would be a
brutum fulmen
.
Child abduction cases, unlawful detention and cases brought on
behalf of others who, because of the alleged invasion of
rights,
cannot themselves appear come readily to mind.
The
courts have coped thus far without the need to be unduly prescriptive
precisely because every possible exigency cannot be anticipated;
and
there is the risk of undue fettering in what remains the necessary
exercise of judicial discretion.
15.
In the present case had a notice of motion been prepared and
brought to the judge (on the assumption of immediately available
facilities to the attorney or counsel and the urgent court–
which appears to be far from the case on the facts) there is
the
possibility that the children would have been boarded before the
order could be conveyed. And this would have been through
no fault of
the respondents because immigration officials had incorrectly
advised that the flight was departing
at 13h00, whereas it in
fact took off at 12.30.
It
is evident that Wright J considered time of the essence and feared
that the flight would depart before the order could
come to
Cathay Pacific’s attention. Even if another court is entitled
to second guess that decision (which I unhesitatingly
discount) then
the applicants have not set out a legal basis for challenging the
court’s exercise of its discretion.
16.
I am unaware of any case where an order is rendered nugatory if it is
only conveyed telephonically to the respondent. Adv Stockwell
did not
refer to any. On the contrary the urgent court regularly directs its
order to be served by way of a telephonic communication
where that is
the only means of ensuring immediate knowledge on the part of the
respondent.
17.
In the present case the applicants do not dispute that they
were aware of the contents of each of the court orders when
conveyed
to them. As Adv Waner points out, Cathay Pacific attempted to explain
its failure to comply on the ground that it
bona fide
believed
that the order was a nullity, not that it was unaware of the
contents. The applicants cannot approbate and reprobate.
They
are confined to their papers.
18.
The first order was very clear- Cathay Pacific was interdicted from
boarding the children on the flight. Aside from immigration
officials, who it is common cause claimed that the matter was out of
their hands and the responsibility of Cathay Pacific, Cathay
Pacific
and those under its control and authority were the only ones who had
de facto
control over the children. In this regard the
applicant’s latest submission, from the bar, is a red-herring-
namely that
the pilot of the aircraft was the proper person to be
cited in the initial application if regard is had to the terms of the
directive
issued by immigration.
Cathay
Pacific were in
de facto
control of the children
(
albeit,
unbeknown to the respondents and the court until agreements were
called for at the penalty stage, that it was through their
agent and
nominee Menzies Aviation)
19.
Another ground not raised before is whether the order must be
physically served at some stage for it to be effective. The
applicants
contend that the failure to prepare an order renders it a
nullity and impacts on all the other orders, collapsing them as if a
pack of cards.
20.
Since an order takes effect immediately, and in this case it had to
be complied with forthwith, there is an intrinsic difficulty
in
arguing that unless it is typed it is a nullity. The reality is that
the volume of orders granted daily by this court and a
possible break
with the central computer server may result in a substantial backlog
of court orders being typed by its registry.
Accordingly in many
cases an order would not be capable of being served before the
required time for compliance with the judge’s
pronouncement.
The
absurdities that would follow are self-evident: For instance if the
telephonically advised order of the court is respected then
a failure
to follow up with an official typed version restores the
status
quo ante
the decision. It would mean that a return date can be
ignored if there is no official typed order, despite the judge’s
registrar
informing the respondent or sending an email where
facilities permit.
21.
The requirements of contempt of court are clear and are satisfied
provided the part of the order that is willfully ignored comes
to the
knowledge of the affected party who has acted
mala fides
. Even
in cases where the court has not issued an order but the affected
party is aware that court proceedings have been instituted,
and has
pre-emptively frustrated an order that might be granted will be held
in constructive contempt of court. See generally
Roberts v
Chairman, Local Road Transportation Board and others (2)
1980 (2)
SA 480
(C) and the cases there cited.
22.
In this case the applicants repeatedly stated in their papers that
they were aware of the orders to which they have now been
called on
to answer. Accordingly the foundational facts to support the
contention sought to be advanced is wanting.
23.
The other difficulty facing Cathay Pacific is that it is
indirectly seeking to do what it did not do directly, attempt
to
either have the court reconsider its orders under
rule 6(12)(c)
or
set them aside when it had an opportunity to do so.
24.
Adv Stockwell argued that the orders were final without Cathay
Pacific being afforded a hearing and therefore no point would
be
served by attending court on any of the three dates to which the
matter was postponed (and in the one case being a date by when
certain of the respondents which included Cathay Pacific were to
produce the children in open court).
The
first order was granted
ex parte
and even assuming that
it is found that Wright J did not afforded Cathay Pacific an
opportunity to be heard before issuing
the second order
(contrary to my finding) then it appears that counsel has overlooked
the provisions of
rule 6(12)(c)
which state that;
“
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order”
25.
A reconsideration in terms of this rule means a re-determination of
the matter (see
Lourenco and Others v Ferela (Pty) Ltd and Others
(No 1)
1998 (3) SA 281 (T) at 290D and its
application in
ISDN Solutions (Pty) Ltd v CSDN Solutions CC and
Others
1996 (4) SA 484
(W) at 487D and
Oosthuizen v Mijs
2009 (6) SA 266
(W) at 269H-270B).
This
was the obvious route to follow at any of the hearing dates to which
the case was postponed (which included the date reflected
in the
papers that were physically served at its offices) if Cathay Pacific
genuinely believed in its position and was not acting
mala fides
.
GROUNDS
ARISING FROM THE JUDGMENT
26.
There are certain facts which it is claimed either Wright J or I was
not entitled to take into account. These are irrelevant
since even if
they are ignored, the remaining facts are overwhelming.
27.
I have again considered my judgment in light of the balance of the
grounds raised by the applicants.
28.
I am satisfied that in respect of all the grounds raised and
persisted with neither Cathay Pacific not Jones have a reasonable
prospect of success and there is no other compelling reason why the
appeal should be heard.
29.
The present respondents were entitled to consider the application for
leave to appeal and assist the court with the submission
of heads of
argument and to argue the matter before me.
ORDER
30.
Accordingly leave to appeal is refused with costs.
SPILG,
J
Date
of hearings: 10 November 2015
Date
of judgment: 11 November 2015
(Revised
12 November 2015)
Legal
representatives
For
applicants: Adv R Stockwell SC and Adv S Pincus
Assenmacher
Attorneys
For
respondents: Adv H Waner
Rossouws
Attorneys
[1]
Section
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
[2]
At
503D
[3]
See
also its application in
Mkhwanazi
v Quarterback Investment (Pty) Ltd and ano
2013 (2) SA 549
(GSJ) at para 67
[4]
At
304H
[5]
At
305A