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[2020] ZAGPJHC 400
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Vex Repairs Proprietary Limited and Others v Farlane and Others (10249/2020) [2020] ZAGPJHC 400 (28 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10249/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date:
28/8/20
In
the matter between:
VEX
REPAIRS PROPERIETARY LIMITED
FIRST APPLICANT
WARREN
BRIAN MAC FARLANE
SECOND APPLICAN
HENDRIK
STEPHANUS PRETOIUS
THIRD APPLICANT
AND
NEIL STEVEN MAC
FRLANE
FIRST RESPONDENT
KEENAN MAC
FARLANE
SECOND RESPONDENT
JILLIAN MAC
FARLANE
THIRD RESPONDENT
ALL THOSE PERSONS
ENGAGING IN
OR WHO ASSOCIATING
THEMSELVES
WITH ANY UNLAWFUL
ACTIVITIES AT
OR ON ANY OF THE
PREMISES SITUATED
AT 58 LEA ROAD,
ANDERBOLT
BOKSBURG.
FOURTH RESPONDENT
VEX MINING REPAIRS
(PTY) LTD
FIFTH RESPONDENT
B2MAC INVESTMENTS
(PTY) LTD
SIXTH RESPONDENT
JUDGMENT
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 11h30 on the 28
th
August 2020.
TWALA
J
[1]
This is an application brought on urgent basis by the applicants
seeking the enforcement
of the court orders granted by this Court on
the 22
nd
May 2020 and 7
th
of July 2020
respectively under the above case number 10249/2020, including an
order that the first and second respondents are
in contempt of the
said Court order.
[2]
The first and second respondents have filed its opposition to this
application. In
these proceedings my reference to the respondents
should be construed as referring to the first and second respondents.
[3]
The genesis of this case emanates from an order consented to by the
parties and granted
by this Court on the 22
nd
of May 2020
and 7
th
of July 2020 respectively. These orders were a
rule nisi which was confirmed on the 7
th
of July 2020
restoring peaceful and undisturbed possession and use of the premises
known as 58 Lea Road, Anderbolt, Boksburg (“
the premises”
)
to the applicants. Amongst the orders was that the respondents are
interdicted from entering and interfering with the access of
the
applicants to the premises and or interfering with the employees and
business of the applicants. The applicants have obtained
a wide
ranging interdict against the respondents and it is these orders that
the applicants aver that the first and second respondent
have
deliberately and intentionally failed to observe and are in contempt
thereof.
[4]
It is on record and is common cause that on the 5
th
of
August 2020 the first respondent attended at the premises at 58 Lea
Road, Anderbolt, Boksburg, where he broke in and change
some of the
locks. The respondents however handed back the locks to the
applicants on the 6
th
of August 2020. On the 13
th
of August 2020 the applicants discovered that the first respondent
collected confidential bank statements of the first applicant
from
its bank and on the 14
th
of August 2020 it was further
discovered that the first respondent registered himself with CIPC as
a director of the first applicant
which registration occurred on the
5
th
of August 2020.
[5]
Counsel for the respondents, Adv Kuger SC, contended on behalf the
respondents that
they did not act in bad faith – hence they
returned the keys to the applicants the next day when they realised
that the applicants
were not happy with their conduct. Furthermore,
it was contended, the first applicant relied on a letter from the
applicants of
December 2019 appointing him as Managing Director to
the first applicant in updating the records of CIPC to reflect that
on the
5
th
of August 2020. He attended at the leased
premises both as a director of the landlord and that of the lessee
having been informed
by his mother that the lessee was about to
vacate the premises which fact was confirmed by the people working in
the building opposite
the leased premises. Therefore, so it was
submitted, the respondents did not act with mala fides since the
first respondent honestly
and reasonably believed that he was a
director of the first applicant.
[6]
It is long established law that, for an applicant to prove that the
respondent is
in contempt of a Court order, it must prove: (a) the
existence of the court order; (b) service or notice thereof; (c)
non-compliance
with the terms of the order and (d) wilfulness and
mala fides beyond reasonable doubt on the part of the respondent.
(See Matjhabeng Local Municipality v Eskom Holdings Limited and
Others; Case No: CCT217/15 and CCT 99/2016 (26 September 2017)
[7]
It is common cause that the applicants have met requirements (a) to
(c) and that now
the burden rests with the respondents to prove that
they acted reasonably in the circumstances and that there was no mala
fides
on their part.
[8]
It is appalling that the first respondent, as he avers to be the
managing director
of the first applicant and director of the
landlord, that he does not enquire from his co-directors if the first
applicant is to
vacate the premises but relies on his mother’s
word and that of people who occupy another building to conduct
himself in
the manner in which he did. Equally appalling is the first
respondent’s conduct in securing his appointment as the
director
of the first applicant a month after he consented to an
order interdicting him from interfering in the business of the first
applicant.
[9]
In my view nothing turns in the respondents’ contention that
the letter of December
2019 signed by a director of the first
applicant and witnessed by another director purporting to appoint him
as the managing director
was not withdrawn. In is not in dispute that
the first respondent resigned as director of the first applicant on
29
th
of July 2019 and was again released of his duties in
January 2020 when he was retrenched and suspended by the first
applicant.
I am therefore of the respectful view that the first and
second respondents deliberately and intentionally failed to comply
and
or to observe the Court orders which were obtained by consent
between the parties.
[10]
It is of no consequence that respondents returned the keys of the
premises to the applicants
the next day for it is on record that
those keys did not work or were not for those premises. The first
respondent proceeded to
interfere with the business of the applicant
in that he presented himself at the bank of the first respondent as a
director and
obtained confidential documents of the first applicant
which he was not entitled to. The first respondent has gone beyond
just
presenting himself as a director a month after having consented
to an order interdicting him from interfering with the business
of
the first applicant, but proceeded to register himself on the 5
th
of August 2020, as a director of the first applicant without the
signatures of the other directors and or following the prescripts
of
the
Companies Act, 71 of 2008
.
[11]
In the circumstances, it cannot be said that the first respondent
conducted himself in a reasonable
and honest manner. The ineluctable
conclusion is that the first respondent had a clear intention not to
observe and or obey the
Court orders. I cannot but find that the
applicants have proved beyond reasonable doubt that the first and
second respondents acted
mala fide with the clear intention not to
observe and obey the Court orders.
[12]
In the circumstances, I make the following order:
1.
Paragraphs 1; 2; 3; 4;
5; 8 and 9 of the notice of motion are granted;
2.
The
first and second respondents are sentenced to a term of 30 days
imprisonment, which term of imprisonment is suspended for 12
months
on condition that they are not found to be in contempt of any order
of this Court.
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing:
25
th
August 2020
Date
of Judgment:
28
th
August 2020
For
the Applicants:
Adv. W Pocock
Instructed
by:
Malherbe Rigg and Ranwell Inc
Tel:
011 918 4116
E-mail:
peter@mrr.co.za
For
the Respondens: Adv.
TP Kuger SC
Instructed
by:
Du Rant Du Toit Pulser Attorneys
Tel:
011 447 1790
E-
mail
sp@ddplaw.co.za