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[2019] ZAGPJHC 557
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Aican Clearance (Pty) Ltd v Mabophe and Another (2019/17688) [2019] ZAGPJHC 557 (28 August 2019)
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/17688
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
YES
REVISED.
28 August 2019
In the matter between:
AICAN
CLEANCARE (PTY)
LTD
Applicant
and
MABOPHE,
DIFFERENCE COLLEN
First
Respondent
SOCOLLPESTCONTROL(PTY)
LTD
Second Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
On 31 May 2019 Senyatsi
AJ granted a restraint of trade order effective for one year as from
29 April 2019 against the first and
second respondents interdicting
them from
inter alia
“securing or doing business with the applicant’s clients
as set out in Annexure A”
The
matter had been opposed, Mr Mabophe being represented by legal aid.
He is the first respondent.
2.
The order included a
provision that the first respondent (Mr DC Mabophe) be removed as a
director of the second respondent for the
duration of the restraint.
3.
On receipt
of the order Mabophe contacted Ms Pieterse of the applicant and said
that the order only prohibited them from contacting
or becoming
associated with the applicant’s clients. His attention was then
drawn to that part of the order requiring him
to terminate his
directorship.
4.
By 13 June Pieterse
again requested by way of letters proof that Mabophe had resigned as
a director. Another conversation
was held between the two
subsequent to which Mabophe again called Pieterse stating that he
would not remove himself as a director.
He added that he was free to
conduct his business and that
a.
He will not comply with
any of the
prayers
of the court order (my emphasis);
b.
The court order is just
a piece of paper;
c.
He will bear the
consequences of his actions
5.
On 20 June the
applicant then brought a contempt application to enforce the order of
29 April. The application was opposed by the
respondents. Mabophe in
his answering affidavit claimed that the judge warned him that he
could not contact the applicant’s
clients.
6.
The matter came before
Monama J. Mabophe was legally represented and after argument the
parties agreed that the provision regarding
him being removed as a
director would be excised from the order and that the matter would be
postponed sine die pending compliance
with the remainder of the court
order of 31 May; and in particular prayers 2.1 to 2.8 of which the
provision that the respondents
do not do business with any client
listed in annexure A was one.
7.
The applicants then
brought an urgent application for contempt on the grounds that the
respondents had again breached the court
order by doing business with
one of those listed on annexure A.
8.
On 23 July I issued a
rule in the following terms:
a.
The first respondent is
ordered to be present at the above court on Friday 26 July 2019 at
09:45 at courtroom 9E.”
b.
Mr Jose Salamo Langa
the co-director of the second respondent also attend;
c.
The first
responded is ordered to attend court on the above mentioned date and
time and provide reasons why he should not;
i.be
found and held in contempt the court order dated 31 May 2019 as
varied by the court order dated 5 July 2019;
ii.pay
the amount of R200 000.00; and
iii.be
committed to imprisonment for a period of 10 days.
d.
The first respondent
and Mr Langa are ordered to bring to this court and disclose all of
their and the second respondent’s
accounting books, client’s
orders, delivery notes, transaction meetings and contracts reflecting
any orders taken from the
applicant’s clients listed in
Annexure A to the court order dated 31 May 2019.
e.
The first respondent
and Mr Langa must depose to respective affidavits in which they
confirm under oath that the documentation and
information disclosed
at the hearing on this matter on the Friday 26 July 2019 at 09:45 are
the only documentation and information
in existence.”
There are various other
provisions which are not relevant.
9.
Mabophe came to court
as did Langa. Mabophe gave evidence and said that he was not
prevented from doing business if the clients
of the applicant
contacted him.
10.
The relevant provision
in order was read to him and he was asked what it meant. He accepted
that it was clear.
11.
Anyone who had engaged
in an opposed application, not once but twice, over the same order,
and successfully excising one of its
clauses would have a clear
understanding of the clause in question. I accept that Langa
personally is the financier leaving the
day to day operation of the
business to Mabophe
12.
I regard this as a
criminal contempt. I am satisfied that the requirements for such a
contempt have been proven. Mabophe simply
noted the contents of the
affidavit that dealt with his attitude to the court order and which I
set out earlier (including that
a court order is just a piece of
paper). He did not dispute any of those allegations.
They
demonstrated the contempt with which he holds orders of court.
13.
This is not the first
time that this court has had to deal with those who have failed to
comply with court orders. If fact, during
the urgent court week in
question, there were two commercial contempts of which this was one
and there were three that were brought
against Correctional Service.
Although those three were not pursued, there remained a concern that
court orders were not being
respected in regard to the two commercial
contempts.
14.
In both these cases
there was a view that courts will not enforce orders, that they are
pieces of paper and that no one will take
the offender party on.
It is time that a strong message is sent that court orders are to be
respected and that there will
be consequences for those who either
instigate others to break them or themselves ignore orders of a
court.
15.
In this case there are
two orders which have been transgressed; one by Senyatsi AJ and the
other by Monama J.
16.
It is for these reasons
that on 8 August 2019 I found both the first and second respondents
to be in contempt for failing to comply
with the order in this matter
of 31 May 2019 as varied by the order of 5 July 2019 and further
ordered that the first and second
respondents are jointly and
severally reliable to pay a fine of R50 000.00 for contempt of
the court order, which fine must
be paid on or before 30 September
2019.
I
also ordered that the first respondent is sentenced to seven days’
imprisonment which sentence is wholly suspended provided
the first
respondent does not again breach the said court order until its
expiry on 28 August 2020 and that the first and second
respondents
are jointly and severally liable to pay the costs of this application
on the party and party scale including those
of all the court
appearances to date
17.
I should have added
that the basis of the determination of the monetary sum is derived
from Langa’s reference to the amount
that he was obliged to
inject into the company on a monthly basis. I should add that it was
also contended that their business
did not have one order placed as
yet. This could not be challenged by the applicants at the time and
is therefore accepted.
SPILG, J
DATE OF
ORDER:
8 August 2019
DATE OF
JUDGMENT:
28 August
2019