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[2020] ZAGPJHC 411
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The Body Corporate of Preston Place v City of Johannesburg and Another (38127/17; A 5028/19) [2020] ZAGPJHC 411 (20 March 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
No: 38127/17
Appeal
Case No: A 5028/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
20/3/2020
In
the matter between:
THE
BODY CORPORATE OF PRESTON PLACE
Appellant
and
CITY
OF
JOHANNESBURG
First Respondent
THE
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG:
DR NDIVHONISWANI LUKHWARENI
Second Respondent
JUDGMENT
WINDELL
J:
INTRODUCTION
[1] This is an unopposed
appeal against the dismissal of a contempt of court application.
[2]
The
appellant
is the Body Corporate of a Sectional Title Scheme and the first
respondent is the City of Johannesburg, a duly established
Municipality which supplies electricity to the appellant. The second
respondent is the municipal manager of the first respondent,
“
tasked
with overseeing the implementation of court orders against the
municipality” and the “logical person to be held
responsible for the overall administration of the Municipality”.
[1]
[3]
On 19 March 2018 a court order
(“the
court order”)
was granted against the
first respondent after a settlement agreement was reached between the
appellant and the first respondent.
In terms of the court order the
first respondent was ordered to,
inter
alia
, provide the appellant with a full
and precise statement of account of amounts owing by the appellant to
the first respondent,
duly supported by actual meter readings and/or
proper proof thereof, and adjustment of the account and payment of
any credits and
certain ancillary relief. It is common cause that the
first respondent did not comply with the court order. In fact, during
the
hearing of the appeal, almost two years later, this court was
informed that it still had not complied with the order.
[4]
In May 2018 the appellant launched contempt proceedings against the
first and second respondents. In the contempt application
it sought
an order finding the first respondent in contempt of the court order
and the imposition of a fine of R 500 000 on
the first
respondent. The contempt application was opposed by both respondents
but the respondents failed to file any answering
affidavits. The
first respondent, at the behest of the judge hearing the contempt
application, filed an explanatory affidavit,
setting out the reasons
why it had failed to comply with the order.
[5]
After receiving the explanatory affidavit and then hearing argument,
the court
a quo
ultimately found that it was impossible for
the first respondent to comply with the court order and dismissed the
contempt application
with costs. It is against this finding that the
present appeal is brought. The appellant submits that court the
a
quo
erred in fact and law, on the factual and legal bases and
grounds set out the notice of appeal.
THE
APPEAL
[6]
The appellant seeks an order setting aside
the court
a quo’s
dismissal
of the applicant’s contempt of court application and replacing
it with an order in the following terms:
1.1
That the First Respondent be found
to be in contempt of the Order of Court granted on 19 March 2018;
1.2.
That the First Respondent be ordered
to pay a fine of R500,000.00 (Five Hundred Thousand Rand) forthwith.
2.
Alternatively to 1 above
(should
read 1.2 above),
the duly authorised
representative of the First Respondent, Dr Ndivhoniswani Lukhwareni,
in his capacity as the Municipal Manager
of the First Respondent, be
committed to prison for contempt of the Court Order granted on 19
March 2018, by virtue of the First
Respondent's non-compliance with
such Court Order.
3.
Costs of suit on the Attorney and own client
scale.
[7]
The first respondent and the second respondent were represented by
attorneys
Kunene Ramapala Inc Attorneys at
the contempt application and when the court order was granted against
the first respondent.
Although the
respondents did not file heads of argument or formally oppose the
appeal, a representative of the attorneys’
firm as well as
counsel were present in court during the hearing of the appeal.
However, it was conceded that there was no power
of attorney for the
appeal as required by Rule 7(3), and that the respondents were
therefore not properly before court. Nevertheless,
the court
permitted counsel to make submissions in order to assist the court.
At the start of the proceedings counsel for the respondents
confirmed
that there had been no compliance with the court order. He further
informed this court that there would be no opposition
to the appeal,
as well as the main relief sought by the appellant against the first
respondent, namely the imposition of a fine.
It was suggested by both
parties that this court should find the first respondent in contempt
and impose a fine, but suspend the
payment thereof on condition that
the first respondent complies with the order within 30 days.
[8]
The suitability of imposing a fine on the first respondent was raised
with the appellant. Counsel for the appellant submitted
that a fine
might not be suitable and that this court should impose the
alternative remedy sought, namely committing the second
respondent to
prison
by virtue of the first respondent's
non-compliance with the court order.
After
hearing the appellant on the merits and the relief sought, there were
two questions that needed to be answered:
1.
Are the first and second respondent in
contempt of the court order granted on 19 March 2018?
2.
If so, what is the appropriate remedy?
THE CONTEMPT
[9]
The appellant has had a long and troubled
relationship with the first respondent going back to 2010. Since
then, the meter at the
appellant’s premises had been replaced,
readings were disputed and excessive amounts were claimed. In March
2014 the parties
reached an agreement and the matter was settled and
payments were made. In June 2017, the first respondent removed
certain meter
cables, the transformer blew up and a generator had to
be installed. The appellant avers that unsubstantiated accounts were
thereafter
rendered without readings of any meters. In light of the
ongoing disputes and inadequate information, as well as wildly
fluctuating
electricity bills, the appellant eventually sent a letter
of demand to the first respondent for a breakdown of the account,
readings
and background information. No adequate response was
received. In due course he appellant launched an application,
essentially
to demand a statement and debatement of account.
[10]
The application was settled and an order was made against the first
respondent. The court ordered the first respondent to provide
the
appellant,
inter alia,
with:
1. a full and precise
Statement of Account of amounts owing by the appellant to the first
respondent, alternatively credits due
to the appellant in respect of
electricity and interest, if any, debited to the appellant’s
account for the period June 2016
to date;
2. copies of the actual
meter readings conducted at the appellant’s property under
account number [....] and to provide proper
proof thereof within 15
(fifteen) days of the court order;
3. the method of
calculation of the consumption and the applicable tariff used to
calculate the consumption for the relevant period
within 15 (fifteen)
days of the court order.
[11]
On 19 and 27 March 2019 respectively, the appellant’s attorney
forwarded a letter to the first respondent’s attorneys
“
Kunene
Ramapala Inc”
attaching a copy of the draft court order. It
also pointed out that the appellant awaited the first respondent’s
compliance
therewith, within the time periods referred to in the
agreement of settlement. Kunene Ramapala Inc did not acknowledge or
reply
to any of the letters.
[12]
On 3 April 2018 the original court order was uplifted from the court
file and forwarded in an email addressed to Kunene Ramapala
Inc. The
first respondent was again requested to acknowledge receipt of the
court order as well to comply with the court order
within the time
periods referred to in the settlement agreement. There was no
response to this letter. On 9 April 2018 a further
letter was
addressed to the attorneys pointing out,
inter alia
, that in
the absence of receiving compliance with the court order within the
time period specified therein, the appellant intended
to proceed with
a contempt application together with a punitive order for costs. Yet
again, there was no response to the letter.
[13]
On 30 April 2018 the appellant instituted the contempt application
against first respondent as well as against second respondent.
The
contempt application was served on the first respondent at Kunene
Ramapala Inc and on the second respondent on Ms Nevas, the
legal
advisor at second respondent’s business address. A notice of
intention to oppose was filed on behalf of both first
and second
respondent and Kunene Ramapala Inc was appointed as their attorneys.
The respondents did not file any answering affidavits
and the
application was eventually set- down for hearing in the opposed
motion court for Tuesday 19 June 2018 before Matojane J.
Although the
respondents were represented in court by Kunene Ramapala Inc as well
as counsel, there was still no answering affidavit
filed on behalf of
the first or second respondent. The learned judge, after hearing
argument, ordered the first respondent to file
an “explanatory
affidavit” and stood the matter down to Thursday 21 June 2018.
The first respondent complied and filed
an explanatory affidavit,
deposed to by Selby Sello Rasoesoe (“Mr Rasoesoe”), the
Acting Deputy Director of the first
respondent in the legal
department.
[14]
During the hearing of the appeal the appellant initially took issue
with the fact that it was not given an opportunity to answer/reply
to
the explanatory affidavit. It submitted that if given the
opportunity, it could have easily refuted the allegations in the
explanatory affidavit. During the hearing of the appeal the appellant
however intimated that it was no longer pursuing that issue.
[15]
The court
a quo
found that it was impossible for the first
respondent to comply with the court order and dismissed the
application with costs.
Was
it impossible for the first respondent to give effect to the court
order?
[16]
The first respondent, in its explanatory affidavit, admitted that it
failed to comply with the court order and set out the
reasons for
non-compliance. In summary the explanation is the following: Mr
Rasoesoe attended at the appellant’s premises
for an inspection
in loco,
seemingly, on the day after the court
a
quo
ordered the delivery of the
explanatory affidavit. He found a meter box at the appellant’s
premises which, according to the
first respondent’s records,
belongs to Marabella Complex, situated at [....] Pretoria Street,
Oaklands. This meter was apparently
installed at Marabella on 5
November 2013. Mr Rasoesoe then proceeded to Marabella Complex at
[....] Pretoria Street in Oaklands
to verify the meter number
physically present at that address, but he was denied access. He then
sent a request to City Power to
source the services of the JMPD to
gain entry to the premises and to get access to the meter. He stated
that the JMPD said “
they will
attend at the premises to assist with access to the physical meter”.
[17]
The first respondent contends that the last actual reading on the
meter at the appellant’s premises was on 31 July 2017.
Since
then readings had been estimates because the first respondent’s
staff was unable to access the appellant’s premises
to take an
actual reading. No particulars are provided of any attempts made to
take an actual reading between 31 July 2017 and
20 June 2018. It
contends that the meter at appellant’s premises “has been
removed” and the first respondent
could not “obtain the
downloads from the property” and as a consequence “no
data was transmitted to the first
respondent from the meter”,
despite annexing to the explanatory affidavit certain information
which appears to have been
extracted from these downloads which were
allegedly not obtained.
[18]
The court
a quo
found that the appellant had removed the
official meter and this made it impossible to comply with the court
order. On a proper
reading of the explanatory affidavit there was no
basis for such a finding.
[19]
When Mr Rasosoe visited the appellant’s premises, albeit three
months after the first respondent was ordered to do so,
he found a
meter at the appellant's premises, but the meter was in fact one
allocated to a totally unrelated complex located in
[....] Pretorius
Street, Oaklands. The only logical conclusion is that appellant's
meter is somewhere in the greater Johannesburg
area and is sending in
readings for an unknown property. What is astounding is that,
although the wrong readings have been received
since November 2015,
the first respondent never checked the meter despite complaints since
2017. This begs the question of how,
where and to which complex the
readings on that particular meter were being billed, and what
readings were being applied to appellant.
The first respondent’s
explanation only serves to confirm the appellant's case.
[20]
The relief sought by the appellant was that the first respondent
should provide copies of the actual meter readings. The learned
judge
apparently took into consideration the alleged inability of the first
respondent to gain access to the appellant’s
premises in order
to take actual readings, but something which appears to be a meter
reading was in fact included in the explanatory
affidavit as COJ4 and
appears to have been available at all times. No explanation was given
by the first respondent why it was
not made available in terms of the
order, or how it was annexed when the affidavit itself said that it
was not available. The alleged
lack of access to the property can
therefore not excuse the first respondent from complying with the
agreed court order. The explanatory
affidavit in addition fails to
set out the dates on which the first respondent attempted to access
the property after the court
order was granted. The court
a quo
should also have considered that the first respondent’s staff
did not need to have access to the meter because it downloads
readings automatically as may be seen from annexure COJ4 which has
readings from 31 July 2017 to 4 June 2018. The appellant further
sought a full statement of account as well as the method of
calculation of the consumption. No explanation was provided for the
failure to provide these. Under the circumstances the court
a quo
ought to have found that no valid explanation was tendered and that
it was possible for the first respondent to have complied with
the
order.
THE
CONTEMPT
[21]
In order to succeed with an application for contempt
ex
facie curiae,
the appellant needs to prove the order; service or notice of the
order; non-compliance; and wilfulness and
mala
fides
beyond reasonable doubt, because the contempt relief it seeks is
punitive
(a
declarator
and
other appropriate remedies remain available to a civil applicant on
proof on a balance of probabilities). Once the appellant
has proven
the essential requisites, the respondents bear an evidential burden
in relation to wilfulness and
mala
fides
.
Should the respondents 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.
See
Fakie
NO v CCII Systems (Pty) Ltd.
[2]
[22]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
[3]
the Constitutional Court (“CC”) summarized the position
as follows:
[67]
Summing up, on a reading of
Fakie
,
Pheko
,
and
Burchell
, I am of the view that the standard of
proof must be applied in accordance with the purpose sought to be
achieved, or differently
put, the consequences of the various
remedies. As I understand it, the maintenance of a distinction does
have a practical significance:
the civil contempt remedies of
committal or a fine have material consequences on an
individual's freedom and security of the
person. However, it is
necessary in some instances because disregard of a court order not
only deprives the other party of the
benefit of the order but also
impairs the effective administration of justice. There, the criminal
standard of proof — beyond
reasonable doubt — applies
always. A fitting example of this is
Fakie
. On the other
hand, there are civil contempt remedies — for example,
declaratory relief, mandamus or a structural interdict
— that
do not have the consequence of depriving an individual of their right
to freedom and security of the person. A fitting
example of this
is
Burchell
. Here, and I stress, the civil standard of
proof — a balance of probabilities — applies.
Should
the first respondent be found in contempt?
[23]
It is not in dispute that the first three requisites, namely the
order; service or notice of the order and non-compliance have
been
established by the appellant in regard to the first respondent. The
issue is whether, in the circumstances of this case, the
first
respondent has shown good cause why it should not be held in contempt
of the court order.
[24]
The court order was granted on 19 March 2018 with the consent of the
first respondent.
The
first respondent therefore had to perform in terms of its own
voluntary undertakings to do so. As stated by the Supreme Court
of
Appeal in
Meadow
Glen Home Owners Association
,
[4]
that obliged the first respondent to make serious good-faith
endeavours to comply with the court order, as is expected from public
bodies. No attempt was however made to comply with the order and no
reasons were advanced as to what steps were taken to give effect
to
the order. In fact, the first time an attempt was made to comply was
when the matter was before the court
a
quo
in the opposed motion court, more than three months later, and only
after the first respondent was instructed by the court to file
an
explanation. It was only then that the first respondent did an
inspection
in
loco
at the appellant’s premises.
Then,
despite finding a meter at appellant’s premises that does not
belong to that address, the first respondent made no attempt
to
further investigate in order to comply with the order. If there was
an issue with the implementation of the order the first
respondent
should have returned to court seeking a variation of the order or a
relaxation thereof. As stated in
Meadow
Glen Home Owners Association
[5]
it was not appropriate for the first respondent to wait until the
appellants came to court complaining of non-compliance in contempt
proceedings, before raising difficulties in complying with the order.
Its failure over a protracted period to take any steps is
to be
deprecated. In the circumstances the first respondent’s
explanation is inadequate and it can be inferred that its conduct
was
wilful and
mala
fides
. In
the result, the first respondent’s contempt was
established
beyond reasonable doubt.
[25]
The next issue is the sanction that must be imposed.
The
appellant, in its grounds of appeal as well as in its heads of
argument, contended for the imposition of a fine on the first
respondent. As stated earlier, during argument the suitability of a
fine was raised with counsel for the appellant,
Mr
Roux
.
Mr
Roux
conceded that a fine might not be
the most suitable remedy in the circumstances and submitted that this
court should, as sought
by the appellant in the alternative, commit
the second respondent to prison for the first respondent’s
failure to comply
with the court order.
Is
the second respondent in contempt?
[26]
In the contempt application and in its grounds of appeal the
appellant only sought an order of contempt against the first
respondent, and not against the second respondent. This is clear from
the notice of motion in the contempt application and the founding
affidavit in support thereof. It only sought
relief
against the second respondent, “
by
virtue of the First Respondent's non-compliance with such Court
Order”,
and
then only in the alternative to a fine.
[27]
The relief sought against the second respondent is incompetent
because the appellant cannot ask for the committal of the second
respondent to prison before it had established contempt on the part
of the second respondent personally. In
Matjhabeng supra
the
CC held that where public officials were cited for contempt in their
personal capacities, the officials themselves, rather
than the
institutional structures for which he or she was responsible, must
have wilfully or maliciously failed to comply
with an order.
This means, in general terms, that the official in question,
personally, must deliberately defy the court order.
In paragraph [76]
of the judgment the CC held as follows:
“
[76]
The next issue for determination is whether the non-compliance on the
part of Mr Lepheana was wilful and
mala
fide
. The reason for these requirements
lies in the nature of the contempt proceeding and its outcome. In
order to give rise to contempt,
an official's non-compliance with
a court order must be 'wilful and
mala
fide'
. In general terms, this means
that the official in question, personally, must deliberately defy the
court order. Hence, where a
public official is cited for contempt in
his personal capacity, the official himself or herself, rather than
the institutional
structures for which he or she is responsible, must
have wilfully or maliciously failed to comply. As the Supreme Court
of Appeal
has held —
'there
is no basis in our law for orders for contempt of court to be made
against officials of public bodies nominated or deployed
for that
purpose, who were not themselves personally responsible for the
wilful default in complying with a court order that lies
at the heart
of contempt proceedings'.
[28]
The appellant must prove the same four requisites discussed earlier.
It must prove that the second respondent had personal
knowledge of
the order, and not just knowledge imputed by the fact that he is the
municipal manager of the first respondent; that
he was personally
aware of the consequences that would befall him if he did not comply
with the order, and that he wilfully and
mala fide
ignored the
order.
[29]
There must be no doubt left in the contempt application about who was
at risk of a finding of contempt. The founding affidavit,
in this
regard, is in my view, lacking. Although the second respondent is
seemingly cited in his personal capacity, the intention
is clearly
not to hold him liable for his own contempt but to hold him
responsible for the first respondent’s contempt. During
the
contempt hearing the appellant never sought an order against the
second respondent, and the court
a quo
was never asked to
consider such an option. The explanatory affidavit was clearly filed
to explain the first respondent’s
failure to comply and lacks
any detail as far as the second respondent’s alleged contempt
is concerned. None of the parties
addressed the appropriateness of
committing the second respondent to prison. Before any order of
contempt can be made against the
second respondent he should have
been forewarned that committal to prison could be imposed and should
have been granted the opportunity,
in his personal capacity, to
explain the non-compliance. Had the second respondent known that this
was on the cards, he might have
considered filing an explanatory
affidavit setting out the reasons why he should not be held
personally liable. The relief sought
against the second respondent
must, for these reasons alone, fail.
THE
RELIEF
[30]
The
main objective of contempt proceedings is to vindicate the authority
of the court and coerce litigants into complying with court
orders.
[6]
In
Victoria
Park Ratepayers’ Association v Greyvenouw CC and Others,
[7]
Plasket AJ, (as he then was) said the following with regards to
compliance with court orders by the state.
“
When
viewed in the constitutional context that I have sketched above, it
is clear that contempt of court is not merely a mechanism
for the
enforcement of court orders. The jurisdiction of the superior courts
to commit recalcitrant litigants for contempt of court
when they fail
or refuse to obey court orders has at its heart the very
effectiveness and legitimacy of the judicial system. In
this sense,
contempt of court must be viewed in a particularly serious light in a
constitutional State such as ours that is based
on the democratic
values listed in section 1 of the Constitution,
particularly those of constitutional supremacy and
the rule of law.
Contempt of court is not merely a means by which a frustrated
successful litigant is able to force his or her
opponent to obey a
court order. Whenever a litigant fails or refuses to obey a court
order, he or she thereby undermines the Constitution.
That, in turn,
means that the court called upon to commit such a litigant for his or
her contempt is not only dealing with the
individual interest of the
frustrated successful litigant but also, as importantly, acting as
guardian of the public interest.
[31]
It is common cause that as at date of the hearing of the appeal, the
first respondent had still not complied with the court
order. The
appellant submitted that the matter need not be referred back to the
court
a quo
because all the elements required for the relief
sought are present and had been proved and no further evidence was
required. It
was submitted that the appellant, as a Body Corporate,
is already out of pocket, at the expense of the homeowners, and
simply requires
that the accounts be corrected. The appeal court can
therefore, in terms of
section 19(d)
of the
Superior Courts Act 10 of
2013
, make a finding on the existing papers as well as a motion court
could.
[32]
In
Pheko
and Others v Ekurhuleni City
[8]
the
CC stated that
while
courts do not countenance disobedience of judicial authority, it
needed to be stressed that contempt of court does not consist
of mere
disobedience of a court order, but of the contumacious disrespect for
judicial authority. At paragraph [37] it
held
that:
“
Where
a court finds a recalcitrant litigant to be possessed of malice on
balance, civil contempt remedies other than committal may
still be
employed. These include any remedy that would ensure compliance, such
as declaratory relief, a
mandamus
demanding
the contemnor to behave in a particular manner, a fine and any
further order that would have the effect of
coercing compliance.”
[33]
The appellant still seeks compliance with the order. It
is clear that the first respondent is capable of complying with the
order
and should be granted a further opportunity to do so. The only
suitable remedy in the circumstances would be to impose a fine.
[34]
In the circumstances the court
a quo
should have found the
first respondent in contempt, imposed a fine, and ordered the
suspension of the payment of the fine on condition
that the first
respondent complies with the order. In the result the following order
is made:
1.
The appeal succeeds with costs.
2.
The order of the court
a quo
is set aside and replaced with
the following order:
2.1
The application against the first respondent is granted with costs on
an attorney
client scale.
2.2
The first respondent is found to be in contempt of court and is fined
R 500 000
(five hundred thousand rand).
2.3
The payment of the fine is suspended on condition that the first
respondent
complies with the court order dated 19 March 2018 within
30 (thirty) days of the order.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
W
.
L. WEPENER
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
Appellant’s
Attorneys:
Arnold Joseph Attorney
Counsel
for appellant:
Adv. C D Roux
First
and Second Respondents’ Attorneys:
Kunene Ramapala
Inc
Date
of hearing:
24
February 2020
Date
of judgment:
20
March 2020
[1]
Meadow
Glen Home Owners Association and Others v Tshwane City Metropolitan
Municipality and Another
2015
(2) SA 413
(SCA) at [24].
[2]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)at [42]
[3]
2018
(1) SA 1 (CC)
[4]
At
[8]
[5]
At
[8]
[6]
Meadows
Home Owners Association supra at [16]
[7]
[2004]
3 All SA 623
(SE) at [23]
[8]
2015
(5) SA 600
(CC) at [37]