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[2016] ZAGPJHC 76
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Oliphant v Jonck (09/21910) [2016] ZAGPJHC 76 (30 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE GAUTENG
HIGH COURT
(LOCAL
DIVISION JOHANNESBURG)
CASE
NO: 09/21910
DATE:
30 MARCH 2016
In
the matter between
OLIPHANT,
GIDEON
JACOBUS
..........................................................................................
Applicant
And
JONCK,
MAURITZ
..............................................................................................................
Respondent
J
U D G M E N T
MOSIKATSANA
AJ
Introduction
:
[1]
This is an application for a civil committal order for
non-compliance with a Court Order granted on 18 May 2010 in the
above
Honourable Court under the above case number directing the respondent
to produce under oath, within seven days from the date
of the said
Order, certain documents detailed in the Order, reflecting the cost
of repairs of a number of vehicles as well as other
documents
including bank statements.
[2]
The applicant seeks an order for the committal of the Respondent for
an unspecified period.
Common
Cause
[3]
It is common cause that pursuant to an oral agreement between the
applicant and the respondent, they embarked on a joint business
venture whereby they would purchase used vehicles and after repairing
them, place them on the market for sale at a profit.
[4]
In terms of the oral agreement reached between the parties, the
applicant was to provide the seed capital for the joint business
venture and the respondent was to assume responsibility for the
management of the business and the keeping of financial and related
records.
[5]
As the business activity increased, a dispute arose with respect to
the accounting for the finances of the joint venture and
the keeping
of records. The dispute culminated in litigation, whereby the
applicant issued notice of motion in the main application
dated 26
May 2009, wherein he sought an order directing the respondent to
provide the applicant with full and proper statements
of account of
all transactions in respect of the agreement that existed between
them.
[6]
The applicant also sought an order that after debatement of the
accounts, the respondent be ordered to make payment to
the
applicant of all amounts due to him, plus interest at the rate of
15,5%
per annum
.
[7]
Before final determination of the main dispute, the applicant brought
interlocutory proceedings in terms of Rule 35(11) of the
Uniform
Rules of Court for the delivery of specified documents in the power
and control of the respondent relating to the issues
in the main
application.
[8]
The respondent issued notice of intention to oppose the Rule 35(11)
application but he did not file a reply. The matter was
set down for
hearing on18 May 2010. Subsequent to the matter being heard in the
absence of the respondent a default order directing
the respondent to
produce under oath and within seven days of the order certain
specified documents was issued by this Honourable
Court on 18 May
2010.
[9]
Two days after the default order was issued, the applicant received
notice that the respondent’s attorneys of record,
then Claassen
Coetzee Attorneys withdrew on the date of the hearing of the Rule
35(11) application.
[10]
It is also not in dispute that the respondent did not comply with the
Rule 35 order of the above Honourable Court. It is as
a result of the
respondent’s failure to comply with the Rule 35 Court Order
issued 18 May 2010 that the present application
for a civil committal
order for contempt of court is before me.
Disputed
Facts
Applicant’s
contention
[11]
The applicant contends that the respondent is in wilful
non-compliance with the default Order granted on 18 May 2010 for the
following reasons:
[11.1]
It is alleged that the Notice of set Down was properly served on the
respondent’s attorneys on 18 April 2010,
a month prior to the
hearing, and that the respondent’s attorneys provided the
applicant’s attorneys with a notice
of withdrawal signed on the
date of the hearing two days after the hearing. No explanation was
given for the withdrawal by the
respondent’s attorneys.
[11.2]
After having served a notice of intention to oppose the Rule 35
application, the respondent did not file an answering
affidavit, nor
did he take steps to timeously appoint another attorney. He also did
not enquire about the outcome of the application
on 18 May 2010.
[11.3]
After becoming aware of the existence of the default order either on
6 March 2012 or 12 October 2012 as alleged by
the respondent, he did
not take measures to have the order rescinded.
[12]
The applicant contends that the only inference that can be drawn from
the above facts is that the applicant’s non-compliance
is
wilful.
Respondent’s
Contention
[13]
Respondent contends that the applicant is not entitled to the relief
sought for the following reasons:
[13.1]
The applicant’s pleading is defective in that it does not
specify a period for committal being sought and that
presumably the
committal may be for an indefinite period tantamount to ‘life
imprisonment’, which is unconstitutional.
[13.2]
It is contended that the applicant’s failure to specify the
relief sought and to provide for alternative relief
is fatal to the
application as the application effectively seeks ‘life
imprisonment.’
[13.3]
It is contended that the applicant only enforced the order two years
after it was granted and that at best for the
applicant, it is
assumed that the respondent had knowledge or received the order,
prior to service of the Rule 35 application.
[13.4]
Based on the content of the founding affidavit, it is alleged that
the applicant has failed to prove its service of the default
order on
the respondent.
[14]
It is contended that as the applicant failed to clearly formulate in
the founding affidavit the relief sought and to prove
service of the
default order, the application must fail.
[15]
The respondent accordingly seeks punitive costs against the applicant
and his attorneys as they know the requirements set out
in the Fakie
judgement that it is essential to prove knowledge of the order and
its content before an applicant may succeed with
contempt of Court
proceedings.
[16]
With respect to wilful disobedience of the court order, it is
contended that the respondent has been under the misapprehension
that
as he was not present and not represented at the hearing when the
Rule 35 order was granted, he is not bound by the order.
[17]
It is also contended that the respondent’s belief that he had a
defence of prescription on the merits, which allegedly
was also a
basis for non-compliance, does not reflect wilfulness on his part.
[18]
Based on the respondent’s misapprehension, it is contended that
his disobedience of the Rule 35 order cannot be regarded
as wilful or
mala fide
. And, that in the absence of a finding of
wilfulness, the respondent cannot be held to be in contempt.
[19]
It is further contended that it was impossible for the respondent to
comply with that part of the Rule 35 order pertaining
to invoicing
because the applicant refused to provide his credit card bank
statements that would reflect the relevant transactions,
which would
have enabled the respondent to obtain the invoices from the
suppliers.
[20]
It is finally contended that the respondent has no other documents at
his disposal thus confirming impossibility of performance.
Issue
for Determination
[21]
This Court is required to determine from the facts, whether a proper
case has been made for the granting of a civil committal
order for
contempt of court.
Applicable
Law
[22]
For a successful claim of committal for civil contempt, the applicant
has to prove the following:
[22.1]
The terms of the order;
[22.2]
knowledge of the terms of the order by the respondent; and
[22.3]
a failure by the respondent to comply with the terms of the order
[1]
.
Upon
proof of these requirements by the applicant beyond reasonable doubt
the presence of wilfulness and bad faith on the part of
the
respondent may be inferred, but the respondent may rebut this
inference by rebuttal evidence on a balance of probabilities.
[2]
Whether
a Proper Case has Been Made by the Applicant for the Granting of the
Relief Sought
[23]
As appears from paragraphs 10 and 11 of this judgment and the
plaintiff’s founding documents, the requirements for the
granting of a committal order for contempt of court have been
satisfied and the only inference to be drawn is that the
non-compliance
was in bad faith.
Whether
Reasonable Doubt has Been Established by the Respondent
[24]
The respondent’s arguments in rebuttal are that:
[24.1]
The respondent was under a misapprehension or ignorant of the
fact that the terms of the Rule 35 order were binding
on him because
he was not present nor was he represented at the hearing of the Rule
35application;
[24.2]
in view of the fact that he believed that he had a defence of
prescription on the merits, he believed that he was therefore
not
bound by the Rule 35 order; and further that
[24.3]
It was impossible for him to comply with the order as the applicant
did not provide him with his bank statements from which
the
respondent could glean some of the financial records.
[25]
The respondent’s rebuttal evidence or defences may for
convenience be categorised as mistake of law and legal impossibility
defences.
Mistake
of Law
[26]
Though in South African law ignorance of the law is a defence,
[3]
the ignorance must be genuine or bona fide.
This
principle has been eloquently articulated by Didcott J (as he then
was) in
S
v Waglines (Pty) Ltd and Another
[4]
where he stated:
‘
Ignorance
of or a mistake about the law is indeed an excuse cognisable by our
courts. The excuse does not always amount, however,
to an acceptable
one. That the ignorance or mistake must first be both genuine and
material goes without saying. Less obviously,
but in principle no
less necessarily, it has to be reasonable in addition whenever
culpa
enters the reckoning, whenever that serves as
mens
rea
. It cuts no ice otherwise, since
the unlawful act which it explains is then committed through
culpa
.
The question therefore posed by such a case is whether the person
concerned should reasonably have realised that what he was doing
or
about to do might well be unlawful. And the answer depends largely on
the care he took or did not take to acquaint himself with
the true
legal position. The duty to investigate this is clear, to speak
generally at all events and not of any area where the
law’s
reach is suspected so little that the possibility of trouble and the
consequent need for caution would never occur
to a prudent mind.
Strong demands are placed, by
comparison, on all those engaged in trades, occupations or activities
which are legally regulated
and known by them to be. They are
expected to learn the rules and obliged to make the effort.
Sometimes,
to be sure, the duty to investigate will be performed satisfactorily
when advice on the lawfulness or otherwise of the
course envisaged is
obtained from a source ostensibly qualified to furnish such, and to
think it lawful will be reasonable once
the assurance has thus been
given that it is
.’ [Emphasis
mine].
[27]
Indeed the respondent’s ignorance of the unlawfulness of his
conduct was wilful and in bad faith in that having failed
to attend
the Rule 35 proceedings, he did not take the trouble to enquire
about the outcome of the Rule 35 hearing as would
be expected from
someone engaged in a highly regulated and complex legal process as he
was. He did not even seek legal counsel
to guide him on an
appropriate course of action.
[28]
the respondent did not investigate the correctness or otherwise of
his erroneously held view that the Rule 35 order was not
binding on
him because it was granted in his absence during Rule 35
proceedings at which he was not represented. This in
my view reflects
total disregard for the Rule 35 application process and wilful
ignorance on the part of the respondent.
[29]
Further, the respondent, after being duly and timeously informed of
the pending Rule 35 proceedings against him, failed to
inform the
court of his counsel’s most curious last minute withdrawal from
the case.
[30]
He also failed to obtain alternative counsel to represent him at the
Rule 35 application proceedings. Such conduct on the part
of the
respondent can hardly be interpreted as genuine or in good faith.
Impossibility
of Performance:
[30]
In his invocation of the defence of impossibility, the respondent
adduces evidence that it was impossible for him to comply
with the
Rule 35 order because he could not obtain certain bank records from
the applicant that would have enabled him to pursue
further paper
trails.
[31]
The defence of impossibility though readily available, will not avail
where the impossibility is as a result of the respondent’s
fault.
[5]
The respondent
undertook in terms of the business agreement reached with the
applicant, to manage the financial records of the
joint enterprise.
He in terms of the agreement became the repository of all the
information relating to the financial records of
the joint
enterprise. Failure to properly maintain and keep the financial
records of the partnership will not avail as a defence.
[32]
In my view the respondent’s rebuttal evidence does not raise
reasonable doubt. The applicant has satisfied the standard
of proof
beyond reasonable doubt.
The
Order
:
[33]
In the result I make the following order:
[33.1]
It is declared that the respondent is in contempt of the court order
dated 18 May 2010 in respect of the production,
under oath, of
documents specified in the order;
[33.2]
The respondent is granted a further ten days from the date of this
judgment to purge the contempt set out in paragraph 1
above, failing
which the applicant may set the matter down upon notice as a matter
of urgency, with or without further amplification
of the papers,
calling upon the respondent to show cause why:-
[33.2.1]
a further order should not issue in terms of which the respondent
would be prohibited from proceeding in any other litigation
in any
other matter that he may be involved with in the High Court until he
has purged the said contempt;
[33.2.2]
he should not pay the costs of any further proceedings on an attorney
and client scale;
[33.2.3]
further sanctions to ensure purging of the contempt should not be
imposed against him.
[33.3]
The respondent is ordered to pay the costs of the application.
[33.4]
The applicant may, in any event, within ten days of the date of this
judgment, set the matter down as stated above for argument
on whether
the matter should be referred to oral evidence on the issue of
whether the respondent wilfully disobeyed the court order
of 18 May
2010, for the purposes of determining whether the respondent should
be committed to jail for the crime of contempt of
court.
TL
MOSIKATSANA AJ
APPEARANCES:
Applicant’s
Attorney: KLINKENBERG INCORPORATED
Applicant’s
Counsel: JJW HAYES
Respondents
Attorney T.G. BOSCH-NAIK ATTORNEYS
DATE
OF HEARING: 24 March, 2014
DATE
OF JUDGMENT: 30 March, 2016
[1]
Fakie
NO v CCII Systems (Pty) Ltd
2006
(4) (SCA) at 344 .
[2]
Frankel
Max Pollak Vinderine v Menell Jack Hyman Rosenberg
[1996] ZASCA 21
;
1996
(3) SA 355
(A) at 367H-368A.
[3]
See
S
v De Blom
1977 (3) SA 513(A)
[4]
1986
(4) 1135 at 1145 paras H/I -1146 C/D
[5]
R
v Close Settlement Corp Ltd
1922 AD 294
at 300.