About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 99
|
|
Dlamini v Dlamini Mulangaphuma Mathop Moshimane Inc and Others (2010/221) [2010] ZAGPJHC 99; [2011] 2 All SA 314 (GSJ) (3 November 2010)
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 2010/221
DATE: 03/11/2010
In the matter between:
DLAMINI, EUNICE
NTHABISENG
.................................................
Applicant
and
DLAMINI MULANGAPHUMA
MATHOPO
MOSHIMANE
INC
...........................................................................
First
Respondent
MULANGAPHUMA MULALO VELE
…......................................
Second
Respondent
MATHOPO BUHLEBUYEZA
LERATO
.......................................
Third
Respondent
MOSHIMANE NEO
PRISCILLA
...................................................
Fourth
Respondent
________________________________________________________
J U D G M E N T
________________________________________________________
MOKGOATLHENG J
:
(1) After hearing
argument, I dismissed this application with costs and advised that
the reasons for my order would be furnished
on request. These then
are the reasons predicating the order made on the 5 May 2010.
(2) The applicant seeks
an order declaring that the respondents are in contempt of a court
order in that, they have failed to comply
fully with the said order
granted on 4 June 2009.
(3) The applicant
contends that the respondents as attorneys, fully understand and are
aware of the court order and what their obligations
in terms thereof
are, but have
wilfully and
mala fide
refused to comply therewith, with the settlement intention to
undermine the authority of the court and to violate its dignity.
FACTUAL MATRIX
(4) The application is
predicated on the settlement agreement made an order of court, the
salient clauses whereof are the following:
(a) Clause 4 which
provides:
All the shareholders
of the first respondent shall invoice for the work done on all
matters up to and including 22 May 2009 including
all the time
currently loaded on Lawplan up to this date:
(b)
Clause 5;
The shareholders of
the first respondent shall be entitled to make representations to the
expert and shall have a reasonable opportunity
of responding to
representations made by each other;
(c) Clause 6;
The first respondent
shall make available all information in relation to the evaluation
including financial information to the applicant
in order to prepare
her representations to the expert.
(d) Clause 8;
The second, third and
fourth respondents shall sign all documents necessary to give effect
to a change to the applicant’s
name by deleting the reference
to “Dlamini” and to lodge same with the Registrar of
Companies within 2 days of signature
of this agreement.
(e) Clause 18;
The shareholders of
the first respondent as at date hereof shall share equally (meaning
each shall be entitled to a quarter) in
respect of any invoice
rendered to clients as at date hereof and which has not been paid.
The first respondent shall make payment
to the applicant to her pro
rata share of the invoice immediately upon receipt of payment from
the client into the applicant’s
Nedbank account known to the
first respondent. The first respondent shall make available to the
applicant on a monthly basis all
documents reasonably necessary to
determine whether clients have paid;
(f) and Clause 20;
The first respondent
shall facilitate the release of the applicant as a surety and a
principal debtor of the loan facility under
the loan agreement
concluded with Business Partners subject to Business Partners
internal process.
THE ALLEGED NON
COMPLIANCE BY THE RESPONDENTS
(5) The applicant alleges
that the respondents have not complied fully with
clause
4
of the settlement
agreement in that they have failed to invoice for the work done on
all matters up to and including 22 May 2009,
as they have only
furnished her with five invoices rendered to clients for the said
period.
(6) The applicant’s
further contention is that, there are invoices which the respondents
are either withholding or have not
issued. Further, the respondents
have refused to provide her with information to enable her to satisfy
herself that they have complied
fully with
clause
4
despite being called upon
to do so in a letter dated 31 August 2009.
(7) The applicant alleges
that the respondents were obliged to provide her with:
(a) the first
respondent’s financial records including but not limited to
bank statements;
(b) a list of outstanding
fees due on the date on which the settlement agreement was concluded;
(c) a list of fees
received in respect of work done up to and including the date of the
settlement agreement;
(d) all invoices issued
for the period up to and including the date on which the settlement
agreement was concluded;
(e) the age analysis for
all work in progress up to and including the date on which the
settlement agreement was concluded; and
(f) the full records of
all work in progress up to and including the date on which the
settlement agreement was concluded.
(8) The applicant
contends that the respondents have not provided her with “
all
information in relation to the evaluation including financial
information
” as they
are obliged to do in terms of
clause
6
, to enable her to prepare
and make representations to the appointed expert as contemplated in
clause 5.
Consequently,
applicant states, she has not been able to make representations to
the appointed expert nor has she been able to respond
to the
representations made by the respondents as contemplated in
clause
5
.
(9) The applicant further
alleges that the respondents:
(a) have not as obliged
in terms of
clause 8
taken the necessary steps to delete reference to her surname
”
Dlamini
”
from the first respondent’s trading name “
Dm5
”;
(b) have failed to comply
with
clause 9
in that they have failed or refused to “
hand
over all the files and documentation
”
relating to the clients referred to therein, and by withholding arch
lever files containing documents and information relating
to one of
the clients referred to in
clause
9
without any factual or
legal basis to do so;
(c) have not complied
with the provisions of
clause
18
in that they have
refused to make available to her on a monthly basis all documents
reasonably necessary to enable her to determine
whether clients have
paid;
(d) have only furnished
her with bank statements for May 2009 and have since refused to
provide her with bank statements for the
period commencing June 2009
to date; and
(e) have not complied
with
clause 20
in
that they have failed to take any steps to release her as surety and
principal debtor in respect of the loan taken by the first
respondent
from Business Partners.
(10) The applicant
submits that in terms of
clause
18,
she is entitled to
documents such as the first respondent’s monthly bank
statements, management accounts and invoices issued
to clients.
THE RESPONDENTS
ALLEGED COMPLIANCE WITH THE ORDER
(11) The respondents
allege that they have to date, fully complied with the terms of the
settlement agreement, consequently, they
are not in contempt of the
court order as alleged or at all.
The respondents allege
that they complied with the court order in the following manner:
(a) they have made
available to the applicant, the age analysis and Work In Progress
reports, from which the applicant is able to
establish which clients
have been invoiced and whether these have paid;
(b) they have furnished
the applicant’s attorneys with copies of all invoices issued,
and have ensured whenever payment was
received, that the applicant is
notified. Further, the applicant was provided with all documents
reasonably necessary to enable
her to determine whether clients have
paid;
(c) they have invoiced
clients in respect of the work done up to 22 May 2009 in matters
which were ripe for billing, and have remitted
to the applicant, her
share in respect of the paid invoices.
(d) the applicant is
aware that a substantial number of matters listed in her attorney’s
letter dated 31 August 2009, were
either invoiced prior to 22 May
2009 in instances were the projects were completed, and in other
matters that no invoices could
be rendered to clients since a fixed
fee was agreed to regardless of the number of hours spend on those
matters;
(e) they have complied
with
clause 8
in that the applicant’s surname “
Dlamini
”
has been removed from the first respondent’s name. In any
event, it was never agreed that the first respondent’s
trading
name was to be changed as well;
(f) they have complied
with
clause 9
in that the applicant’s attorney collected all the clients
files referred to, consequently, there are no files in their
possession neither the two specific files of the clients mentioned in
that clause;
(g) they have complied
with
clause 8 and 18
in that the applicant’s attorney and financial advisor were
provided with all information and/or documents necessary to enable
her to make representations to the appointed expert. In any event,
they have not made any representation to the expert as contemplated
in
clause 5
;
and
(h) they have facilitated
the applicant’s release as surety in terms of
clause
20
by fully co-operating
with Business Partners and making available all documents required by
them to consider the applicant’s
release as a surety.
THE APPLICABLE LEGAL
PRINCIPLES
(12) The case of
FAKIE
NO v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
is the
locus classicus
of the principles applicable in contempt of court proceedings, and I
intend referring to same copiously in determining whether
the
applicant has discharged the onus reposing on her and whether the
respondents were indeed in contempt of the court order as
alleged. In
Fakie NO supra
it was held:
“
Contempt of
Court
[6]It is a crime
unlawfully and intentionally to disobey a court order. This type of
contempt of court is part of a broader offence,
which can take many
forms, but the essence of which lies in violating he dignity, repute
or authority. Since the rule of law………requires
that the dignity, and authority of the courts, as well as their
capacity to carry out their functions, should always be
maintained……the
court grants enforcement also because
of the broader public interest in obedience to its orders, since
disregard sullies the authority
of courts and detracts from the rule
of law…………..
[9]The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed
‘deliberately
and mala fide’. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly,
believe him or herself
entitled to act in the way claimed to constitute the contempt. In
such a case, good faith avoids the infraction.
Even a refusal to
comply that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good
faith).
[10]These
requirements – that the refusal to obey should be both wilful
and mala fide, and that unreasonable non-compliance,
provided it is
bona fide, does not constitute contempt – accord with the
broader definition of the crime, of which non-compliance
with civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of a court order, but by the
deliberate and
intentional violation of the court’s dignity, repute or
authority that this evinces. Honest belief that non-compliance
is
justified or proper is incompatible with that intent…….”
………
in
the interest of justice, courts have been at pains not
to permit unvirtuous
respondents to shelter behind patently
implausible affidavit
or bald denials…..….There has to be a bona
fide dispute of fact
on a material matter………
[42]…………………………….
(c) In particular,
the applicant must prove the requisites of contempt (the order;
service or notice, non-compliance, and wilfulness
and mala fides)
beyond reasonable
doubt
.
(d) But, once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.”
(13) To determine the
question whether the applicant has proved beyond reasonable doubt
that the respondents have failed to comply
fully with the court
order, the applicant has to show that the respondents failure was
wilful and
mala fide
.
(14) In
Fakie
NO supra
it was further
held:
[55]”That
conflicting affidavits are not a suitable means of determining
disputes of fact has been a doctrine of this court
for more than 80
years…….in the interest of justice, courts have been at
pains not to permit unvirtuous respondents
to shelter behind patently
implausible affidavit or bald denials…….There has to be
a bona fide dispute of fact on
a material matter. This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected out of hand, without
recourse to oral evidence. In
Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd,
this Court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real, genuine
or
bona fide dispute of fact but also allegations or denial that are so
far-fetched or clearly untenable that the Court is justified
in
rejecting them merely on the papers………..
however robust a court
may be inclined to be
a
respondent’s version can be rejected in motion proceedings only
if it is ‘fictitious’ or so far-fetched and
clearly
untenable that it can confidently be said, on the papers alone, that
it is demonstrably and clearly unworthy of credence”
.(
my
emphasis)
(15) In
Fakie
NO supra
the
court set out the approach in resolving such a matter where there is
a dispute of fact in the affidavits:
“[63]
In the light of the proper approach to deciding factual disputes in
motion proceedings…….. The accepted
approach requires
that, subject to ‘robust’ elimination of denials and
‘fictitious’ disputes, the Court
must decide the matter
on the facts stated by the respondent, together with those the
applicant avers and the respondent does not
deny. On that approach,
since the Auditor-General’s version cannot legitimately be
‘robusted’ away, his factual
assertions, including those
regarding his state of mind, must be accepted as established. The
proven facts thus establish more
than just a reasonable doubt, but a
factual picture that entails acceptance of the Auditor-General’s
version, though that
is incidental to the form of the proceedings
before us.
[64]
To summarise: On the accepted test for fact-finding in motion
proceedings, it is impossible to reject the Auditor-General’s
version as ‘fictitious’ or as clearly uncreditworthy.
There is a real possibility that, if a court heard oral evidence
on
the factual disputes between the parties, it
(16) How
is the factual dispute to be resolved? The applicant did not ask for
matter to be referred to oral evidence or for the
respondent to be
cross examined. Had this happened, perhaps the disputed facts would
have been determined in a live contest resulting
in a trial of
issues, instead the applicant chose to argue on her papers and the
respondents papers that the requisites of contempt
of court had been
fulfilled
might accept the
Auditor-General’s version, or at least find that there was
reasonable doubt as to whether the delay in complying
with the orders
of Hartzenberg J was wilful and mala fide. CCII therefore failed to
prove that the default was wilful and mala
fide.”
THE ANALYSIS OF
EVIDENCE
(16) How is the factual
dispute to be resolved? The applicant did not ask for matter to be
referred to oral evidence or for the
respondent to be cross examined.
Had this happened, perhaps disputed facts would have been determined
in a live contest resulting
in a trial of issues, instead the
applicant chose to argue on her papers and the respondents papers
that the requisites of contempt
of court had been fulfilled.
(17) Can the respondents
version be rejected on the affidavits as ‘
fictitious
’
or as demonstrably uncreditworthy? In my view, clearly not. The
respondents give details of their efforts to comply with
the court
order. And, throughout, they assert the good faith of their efforts.
(18) The settlement
agreement is certainly not a model of elegant lucidity and clarity,
it suffers from an ambiguity of expression,
consequently, the parties
accord it different interpretation, which in turn obviously gives
rise to discordant views regarding
non-compliance, partial
compliance, or indeed full compliance with the court order viewed
from the parties individual perspectives.
(19) The terms of the
settlement agreement lacks definitive specificity. For instance the
concept of work done as at 22 May 2009
is not defined, the
applicant’s accusation that the respondents have not fully
complied with
clause 4
,
in that they have not rendered invoices on all matters the
respondents interpretative perspective to that is “
the
first respondents practice is mainly project based and accordingly
invoices are rendered to clients once certain milestones
are
achieved,
”
consequently, although work could have been performed in certain of
these project based matters as at the 22 May 2009, the
fact that such
work does not coincide with “
achieved
milestones,
” the
respective individual clients are not invoiced because “
these
matters are not ripe for billing
.”
In other matters, “
fixed
fees
” were agreed to
regardless of hours spent on those matters” or the accumulated
value of the work in progress performed
in those specific matters
which had not as at 22 May 2009 been finalised and invoiced. From the
aforegoing it is patent that the
parties accord different
interpretations to the clause having regard to the parties different
views regarding the required requisites
of compliance with
clause
4.
(20) In
clause
18
all the documents
reasonably necessary to be made available by the first respondent to
the applicant on a monthly basis to determine
whether clients have
paid are not defined, consequently, according to the applicant’s
interpretation, the respondents “
have
not provided her with information to enable her to satisfy herself
that they have complied with clause 4,”
or “
all information in
relation to the evaluation including financial information
”
as obliged in terms of clause 6 to enable her to prepare and make
representations to the expert as contemplated in
clause
5
, consequently she has not
made representations to the appointed expert.
(21) The respondents
allege that all the necessary financial information was furnished to
the applicants attorney and financial
advisor. It is patent that the
parties are not at
ad idem
regarding the interpretation of what constitutes the “
documents
reasonably necessary”
or what constitutes “
adequate
information sufficient
”
to determine and satisfy the applicant that the respondents have
complied fully with
clause 4
in relation to the matters raised in her attorney’s letter
dated the 31 August 2009.
(22) It is patent that
documents and information were exchanged between the parties, from
the applicant’s interpretative perspective
it is the deficiency
and adequacy thereof which determines that the respondents have not
complied with the court order, whilst
in contradistinction, from the
respondent’s perspective, it is the sufficiency of the
documentation and information requested
which was furnished which is
regarded as necessary and reasonable and evidences the respondents
compliance with
clause 4, 6
and 18
.
(23) The applicant does
not contend that the respondents have not completely complied with
the court order, she alleges that the
respondents have not complied
fully with the court order. This concession in my view evidences a
modicum of good faith on behalf
the respondents conduct,
consequently, this shows that there is
bona
fide
factual dispute on a
material matter having regard to the parties’ versions.
(24) The respondents did
not lie supine after the settlement agreement was made an order of
court, they communicated with the applicant’s
representatives,
supplied documents, and gave the details of the documents. The
respondents
bona fide
performed in terms of their interpretation of the settlement
agreement and in good faith thought they were complying with the
court order. There could be gaps and insufficiencies in the account
tendered from the applicant’s perspective, despite this
the
respondents version cannot be rejected as fictitious or as so
implausible as to warrant their dismissal without recourse to
oral
evidence.
(25) The settlement
agreement from the respondents interpretation thereof and given its
ambiguity of expression and lack of definitive
lucidity and clarity,
and the respondents rational comprehension thereof, their version
cannot and it is not capable of being rejected
on the papers as
fictitious or palpably not creditworthy without them being afforded
an oral hearing.
(26) The onus the
applicant is enjoined to discharge is proof beyond reasonable doubt.
Can it be cogently argued that on applicant’s
version a party
which partially complies with a court order is wilfully mala fide
having regard to the “
onerous
onus
” the applicant
is charged to discharge? Can a party which asserts that it has fully
complied with a court order, in that
according to its
bona
fide
interpretation it
performed in terms of settlement agreement, be said to be in contempt
of the court order, or differently stated,
can its version be
rejected as fictitious, far fetched, or untenable when there is a
concession by the applicant that the respondents
have partially
complied with the court order.
(27) The applicant
contends that despite the respondents deleting her surname from the
first respondent’s registered name,
they have not fully
complied with
clause 8.
Applicant’s counsel in support of this contention, referred me
to the decision of
Grϋtter
v Lombard and Another
2007 (4) SA 89
SCA.
That
decision in my view
is
distinguishable on the facts and law from the present matter. In that
matter the Supreme Court of Appeal found that “
the
evidence establishes clearly Gϋrtter and Lombard were not in
partnership…….. that “the material facts
are not
in dispute and disclose none of the features of a partnership……..that
Grϋtter and Lombard each pursued
his own practice independently
of the other……….and in the absence of a
relationship of partnership the name
under which they practised was
not an asset that fell to be utilised and disposed of in accordance
with partnership principles.
”
(28)
The
Supreme Court of Appeal further held that the limited purpose of the
agreement of sharing facilities and expenses and to pursue
their
respective practices under their joint names, that agreement having
come to an end, the question is whether Lombard is entitled
to use
Grϋtters name in the description of his practice without his
consent.”
(29) The Court correctly
found that Grϋtter had a protectable right of identity and
personality to his name and that the use
thereof for commercial
purposes without his consent constituted a violation to Grϋtter’s
personality rights entitling
him to protection in terms of
actio
injuriarum
because Lombard
misrepresented to the public that Grϋtter was professionally
associated with Lombard and Grobbler. (the attorney
who later went
into partnership with Lombard after the dissolution of the afore
referred to association).
(30) In the present
matter it is common cause that the first respondent is a juristic
person, a limited liability company of attorneys,
incorporated and
registered as such in terms of the
Companies
Act 61 of 1973
and
empowered to carry on its professional practice by reason of
section
23(1) of the Attorneys Act 53 of 1979
,
under the first respondent’s registered name “
Dm5
”
in terms of the
Companies
Act 61 of 1973
as; “
the
enterprise’s shortened name
”.
(31) The applicant states
that the first respondent’s trading name “
Dm5”
was derived from the first letters of the founding shareholder’s
surnames, that “
D
”
represents her surname. The applicant agrees with the respondents
that when the two former founding shareholders Malongete
and Murray
resigned as shareholders and directors the first respondent’s
trading name was never changed.
(32)
Clause
8
alludes only to a change
of the applicant’s registered name, and that the reference to
her surname “
Dlamini
”
be deleted.
Clause 8
does not refer to a change and or deletion of the alphabet “
D
”
in the first respondent’s trading name “
Dm5
”.
It is obvious that the manner in which
clause
8
is couched, it was never
in the contemplation of the parties to change the first respondent’s
trading registered name. In
my view such deletion cannot be
reasonably inferred or implied from the terms of
clause
8,
neither was it
contemplated that a change of the first respondent’s
incorporated and registered name also included or referred
to the
registered trading name “
Dm5
”.
(33)
Clause
8
, does not encompass an
express term postulating a change of both the first respondent’s
incorporated name, or its registered
trading name, neither does it
postulate a tacit or implied term from which it can be in referred
that the parties in addition also
contemplated changing the
registered trading name “
Dm5”.
See
City
of Cape Town CCMC Administration v Bourbon-Leftley NNO
2006 (3) SA
488
SCA at 494F
and
Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at 136H-137D.
Botha v Coopers &
Lybrand 2002 (5)
2002 (5) SA 347
(SCA) as paras [22]-[25] and in
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and
Another
2005 (60 SA 1
(SCA) ([2004] 1 Alll SA 1) at paras
[50]-[52]
.
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
9A) at 532H) 533B
.
(34) In fact to
demonstrate that there is a clear distinction between the first
respondent’s registered name and its registered
trading name,
its incorporated name after the deletion of “
Dlamini
”
the applicant’s surname in compliance with
clause
8
, is Mathopo Moshimane and
Mulangaphuma incorporated. The registered name comprises three
shareholders and directors in contradistinction
to Dlamini,
Malungaphuma, Mathopo, Moshimane, Malongete Murray as it was at the
first respondent’s inception. Consequent,
to the resignation of
the Malongete, and Murray, the registered trading name still endured
irrespective of the fact that the number
of share holders and
directors was less than the five as at its incorporation.
(35) The applicant does
not claim exclusive right to the use of the alphabet “
D
”
which right in my view she does not have. It is trite that an
individual’s right to identity and personality may be
infringed
if it is used for commercial purposes without the individual’s
consent. In this matter, the applicant cannot be
heard to argue that
the first respondent’s trading name
Dm5
is used without her consent when she as an attorney elected not to
pertinently contract the alphabet “
D”
out of and from the first respondent’s trading name, more
especially when
clause 14
provides:
“The
second, third and fourth respondents hereby confirm that no assets of
Dm5 Investments have been transferred to another
entity and agree to
transfer their shareholding in Dm5 Investment Company (Pty) Ltd to
the applicant and the applicant shall within
2 days of signature of
this agreement take all steps necessary to effect the change of the
name of the company. Such change of
name shall not be confusing
similar to the current name of the company.”
(36) It is patently clear
that the applicant is fully aware and conscious of the fact that the
epithet “
Dm5
”
exists in different guises in relation to the first respondent’s
registered trading name and its investment company
Dm5 Investment
(Pty) Ltd.
(37) In the premises it
is my considered view that the respondents have discharged their
evidential burden, consequently the applicant
has not succeeded in
proving contempt of court beyond reasonable doubt.
THE ORDER
(38) The application is
dismissed with costs.
Dated at Johannesburg on
the 2
nd
November 2010.
___________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
DATE OF HEARING: 5
TH
MAY 2009
DATE OF JUDGMENT: 3
RD
NOVEMBER 2010
ON BEHALF OF THE
APPLICANT: MR TSAWAWA
INSTRUCTED BY: DLAMINI
INCORPORATED
TELEPHONE NUMBER:(011)
783-2599
ON BEHALF OF THE
RESPONDENT:
MR
MATHOPO
INSTRUCTED BY: DLAMINI
MATHOPO MOSHIMANE
TELEPHONE NUMBER:(011)
333-1512/3