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[2016] ZAGPJHC 218
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Quits Aviation Services Limited v Empire Engineering (Pty) Ltd and Others (21298/2016) [2016] ZAGPJHC 218 (17 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
21298/2016
DATE:
17 AUGUST 2016
In the
matter between:
QUITS
AVIATION SERVICES
LIMITED
............................................................................
Applicant
And
EMPIRIC
ENGINEERING (PTY)
LTD
....................................................................
First
Respondent
MELUSI
MASWABI GREGORY
MOFOKENG
.................................................
Second
Respondent
ANTHONIE
JOHANNES
WILLEMSE
...................................................................
Third
Respondent
JUDGMENT
Van der Linde, J:
Introduction
[1]
This
is an application for contempt of court. It comes on the urgent
court roll. All three respondents are alleged to be in
contempt of a
court order of 1 August 2016 by my brother Mokgoathleng, J who on
that day reconsidered and set aside an order granted
on urgent
application ex parte by Carstensen, AJ in favour of the 1
st
respondent, authorising the attachment of assets of the applicant to
found jurisdiction.
[2]
Under
rule 6(12)(c) such orders may be set down for reconsideration, which
is what the applicant did; this led to the order by Mokgoathleng,
J.
His Lordship also ordered that the assets that had since been
attached, pursuant to the order of Carstensen, AJ, be released
and be
delivered to Phenix Construction (Pty) Ltd. The case for contempt
against the 2
nd
and 3
rd
respondents is that in law they control the 1st respondent, and so
the failure of the 1
st
respondent to comply with the court order is directly attributable to
the wilfulness and mala fides of the 2
nd
and 3
rd
respondents.
[3]
The
1
st
respondent had given notice of application for leave to appeal
against the order of Mokgoathleng, J and the respondent now argue
that that notice has the effect, under
s.18(1)
of the
Superior Courts
Act 10 of 2013
, to have suspended the operation of that order. The
further effect, according to the submission, is that the earlier
order of Carstensen,
AJ was resuscitated, and so the attachment of
the assets stands.
[4]
If this argument stands, the application
fails. If the argument falls, the question still remains whether the
applicant has shown
the respondents’ contempt of court. The
respondents certainly have knowledge of the order, and they are
deliberately not
obeying it, ostensibly believing that they are
entitled to ignore it because it has been suspended pending the
appeal. If the respondents
are to avoid the inference of wilfulness
and mala fides, they have to advance evidence that establishes a
reasonable doubt as to
whether non-compliance was wilful and mala
fide.
[1]
[5]
It
seems therefore that the correct approach in this matter is first to
consider whether the operation and execution of the order
has been
suspended, and then to consider whether a case for contempt of court
has been made out.
Has the
order been suspended?
[6]
In this division Goldblatt, J held in
Chrome Circuit Audiotronics (Pty) Ltd v Recoton European Holdings Inc
and Another,
[2]
that an application for leave to appeal such a reconsideration of an
attachment order, which had set aside the original order granting
the
attachment to found jurisdiction, does not have the effect of
reviving the attachment. That judgment was given when the now
repealed
[3]
rule 49(11)
still applied; but
s.18(1)
and (2) have substantially
re-enacted those provisions and so the reasoning applies with equal
force.
[7]
Goldblatt, J referred with approval to a
judgment in the Western Cape Division in The MV Snow Delta: Discount
Tonnage Ltd v Serva
Ship Ltd
[4]
by Selikowitz, J which came to the same conclusion for the same
reasons. Snow Delta was since upheld on appeal to the Supreme
Court
of Appeal.
[5]
Further, the reasoning in those judgments has recently been followed
in an unreported judgment in the Western Cape Division by
Van Rooyen,
AJ in The MV Asturcon and Others v Afriline Denizcilik Veg Emi
Kiralama Ltd.
[6]
The learned Acting Judge applied both
s.18(1)
and
rule 49(11)
, his
attention not having been drawn to the fact of the repeal of the
latter, but nonetheless in this sense bridging the rule which
applied
when Goldblatt, J gave his judgment, to the present-day legal
position.
[8]
Assuming
that strictly speaking the judgment of Goldblatt, J is not binding on
me because it was decided on a different rule than
the section that
now applies, its reasoning appeals, with respect, to me. An
application brought ex parte is subject, according
to
rule 6(12)(c)
,
to “reconsideration”. Such a reconsideration may even be
on the same papers. That hearing is not an appeal; it is
what as word
says, a “reconsideration”. The reason why the application
is permitted to be reconsidered, is because
the absent respondent was
not present in the first place when the matter was argued and an
order was granted.
[9]
If
the application is then reconsidered, and it is dismissed, it is akin
to an application on notice which is dismissed. Any party
may give
application for leave to appeal, and of the order is capable
otherwise of being put into operation and execution, such
operation
will be suspended under
s.18.
But if it cannot be put into operation
and execution, there is nothing that can be suspended.
[10]Take the costs order usually granted when
an application is dismissed with costs. The giving of a notice by the
unsuccessful
applicant of an application for leave to appeal will
suspend the costs order, because that is an order which is capable of
being
put into operation and execution; and the successful respondent
will not be able to recover its costs from the applicant. But the
dismissal of the substantive part of the relief claimed is usually
incapable of being put into operation and execution, because
usually
no order to pay money or do something will have been made.
[11]If an unsuccessful applicant considers that
the dismissal of its application will cause it irreparable harm
pending the appeal,
it is not without remedy. It is free to apply for
an appropriate interim interdict pending the appeal. If it does not
succeed and
the application for an interim interdict is dismissed,
then it is in the same position as the unsuccessful party in the
interim
applications envisaged in
ss.18(1)
and (2).
[12]If this were not
the appropriate interpretation of
s.18
, then an unsuccessful party
would be able to obtain substantive relief against the successful
party, if only in the interim, thereby
placing the onus on the
successful party to show the presence of “exceptional
circumstances.” That involves an inroad
into freedoms
[7]
guaranteed in the Bill of Rights, and accordingly such an
interpretation is not appropriate.
[13]It follows that to my mind the order of
Mokgoathleng, J was not suspended, and the 1
st
respondent is obliged to carry it out.
Contempt
of court?
[14]
The order made
by Mokgoathleng, J contained a paragraph 1 which was not included in
the relief claimed in the notice of motion.
It was however included
in a draft order that was handed up to the Learned Judge when the
matter was argued, but a copy was not
at that time given to the
counsel representing the respondents. The first time this
counsel saw the paragraph concerned was
when the order of
Mokgoathleng, J of 1 August 2016 was published.
[15]The paragraph concerned reads as follows:
“The Order of acting Judge Carstensen, granted on 24 June 2016,
is reconsidered
and deleted.”
[16]This is regretted. Counsel for the
respondents submitted that had they known that this was the relief
that would be asked, they
might have conducted the case differently.
Whether the respondents would have been successful had they done so,
is a different
matter; but that seems to me irrelevant. It has
always been fundamental to the way in which litigation is conducted
in these
courts that parties do not place anything before a judge
which is not at least at the same time placed before his or her
opponent.
[17]In this matter, had draft order been given
to the respondent’s counsel, there may have been an objection;
or a further
affidavit; or further submissions. One does not know
where this may have led. The court’s concern with this feature
is expressed
in the costs order made below.
[18]Civil contempt of court proceedings have a
criminal character. That is why the applicant must show beyond a
reasonable doubt
that the respondent had knowledge of the order, that
the order was not executed; and that the respondent was wilful and
mala fides.
Once knowledge and non-compliance is shown, wilfulness
and mala fides are inferred, unless the respondent establishes a
reasonable
doubt as to these two requirements.
[19]There is no doubt that the
respondents had knowledge of the order; they concede that. It is also
common cause that the assets
were not released.
[20]The respondents advance essentially two
arguments to excuse their non-compliance. The first is that the order
was not capable
of being executed, since no company known as Phenix
Construction (Pty) Ltd exists; only Phenix Construction
Technologies
(Pty) Ltd exists. But the respondents know that Mr Bhamjee is the
operating mind behind this latter company, and that the order
intended to refer to this company. Accordingly, the respondents’
reliance on the technicality of the correct name of the
relevant
Phenix company does not persuade me that they failed to comply with
the order because they did not know to whom to release
the assets.
[21]
The second
reason advanced concerns the question whether the order of
Mokgoathleng, J was suspended. Here the question is whether
the
respondents avoid the inference of wilful conduct by contending that
they believed that the order of Mokgoathleng, J was, as
a matter of
law, suspended by their notice of application for leave to appeal.
[22]The provisions of
s.18
of the
Superior
Courts Act must
have been known to the respondents, since they will
have taken their legal advice. They must have appreciated too that
the attachment
to found jurisdiction is an interlocutory order, the
implication of which is that ordinarily an application was required
by them
in terms of
s.18(2)
before suspension would have followed.
Since they did not so apply, they could not have thought that the
order was suspended.
[23]But there is a complicating factor. I have
held above that
s.18
does not apply to the order of Mokgoathleng, J
because it is, in substance, a negative order not capable of being
put into operation
or of being executed. That being so, the question
is rather whether the respondents ought to have known this and thus,
as a matter
of inference, did know this.
[24]Moreover, if one
assumes that they knew that
s.18
did not apply to the order, they may
conceivably have reasoned that the common law rule, that embodied in
the old
rule 49(11)
, would have applied. Of course, this rule was
repealed in April 2016 but that is not known to all.
[8]
And, even if they had known that the rule had been repealed, that is
not to say that they knew of the Goldblatt, J judgment, which
in
effect explains the common law position.
[25]In the result, although as a matter of law
the order of Mokgoathleng, J was not suspended by
s.18(2)
of the
Superior Courts Act, the
respondents (assuming that the 2
nd
and 3
rd
respondents could be held in contempt for the failure of the 1
st
respondent to comply with the order) are not in contempt of court for
failing to execute it. I believe it is appropriate however,
in view
of the conclusion to which I have come, that an appropriate
declaratory order issues.
[26]In the result I make the following order:
(a)
It
is declared that the order of Mokgoathleng, J of 1 August 2016 in the
above matter has not been suspended as a result of the
delivery of
the 1
st
respondent’s notice of application for leave to appeal against
that order.
(b)
The
1
st
respondent is directed to comply with the said order, and to release
deliver the assets attached to Phenix Construction Technologies
(Pty)
Ltd.
(c)
No
order as to costs issues.
WHG van der
Linde
Judge, High
Court
Johannesburg
Date of
argument: 10 August 2016
Date
of judgment: 17 August 2016
For the
applicant: Adv. Desai
Instructed
by: Yousha Tayob Attorneys
1
st
Floor, 7 Bonanza Street
Selby Extension 19
Tel: 011 838 3342
Ref:
YOUSHA/2680/YT
For the respondent:
Adv. Ascar
Instructed by: Beder
Friedland Inc
204 Alteryn, 6 Corlett
Drive
Illovo
Tel: 082 603
9640
[1]
Fakie NO v CCII Systems (Pty) Ltd,
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at
[42]
.
[2]
2000(2) SA 188 (W).
[3]
17 April 2015.
[4]
1996 (4) SA 1234 (C).
[5]
MV Snow Delta Serva Ship Ltd v Discount Tonnage
Ltd, 2000(4) SA 746 (SCA).
[6]
Case no AC11/2015, 2 September 2015
[7]
Ss.21
and
24
.
[8]
It was not known to the court in the MV Asturcon
case.