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[2023] ZAGPJHC 1065
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Virtual Benefit Solutions Tech (Pty) Ltd v Koekemoer and Others (2023/082132) [2023] ZAGPJHC 1065 (22 September 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
No.
2023/082132
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
22.09.23
In the matter between:
VIRTUAL
BENEFIT SOLUTIONS TECH (PTY) LTD
Applicant
And
DR
HENDRIK LAMBERT KOEKEMOER
First
Respondent
AMLIKE
HOLDINGS (PTY) LTD
Second
Respondent
AMLIKE
SOUTH AFRICA (PTY) LTD
Third
Respondent
JUDGMENT
WILSON
J:
1
On 18 August 2023 the first respondent, Dr. Koekemoer, and the
second respondent, Amlike, approached my sister Yacoob J
ex parte
for an order attaching several items of moveable and incorporeal
property then in the possession of the applicant, “VBS”.
Yacoob J granted that order, but, once the order was served and the
property was attached, VBS set the matter down for reconsideration
before my brother Moorcroft AJ. On reconsideration, Moorcroft AJ
discharged Yacoob J’s order and dismissed the
ex parte
application with costs. He did so on the basis that neither Dr.
Koekemoer nor Amlike had the necessary standing to sue for the
relief
they obtained from Yacoob J.
2
Most reasonable people would assume that this meant that the
property should go back to VBS. But that did not happen. Shortly
after
Moorcroft AJ’s order was handed down, Dr. Koekemoer’s
and Amlike’s attorney wrote to the Sheriff and demanded
that
the Sheriff give the property to his clients. The Sheriff
acquiesced.
3
This meant that, although neither Dr. Koekemoer nor Amlike
were ever entitled to the order attaching the property, the end
result
was that they obtained possession of it anyway.
4
This outcome is plainly perverse. But I do not think I can do
anything about it. VBS asks me to declare that Dr. Koekemoer’s
and Amlike’s attorney’s conduct was contemptuous of
Moorcroft AJ’s order, and to direct the respondents to purge
this contempt by returning the property. But I do not see how that
relief follows. Moorcroft AJ declined to order the return of
the
property to VBS, despite being asked to do so. Moorcroft AJ does not
explain in his judgment why he declined to make such an
order, but it
is possible that he felt that, the matter having been determined on
the issue of standing, there was no warrant to
enter into the issue
of who had the right to possess the property the Sheriff attached.
5
Be that as it may, Moorcroft AJ having declined to say where
the property should go, there was nothing inherently contemptuous –
as opposed to just plain sneaky – in what Dr. Koekemoer’s
and Amlike’s attorney did. Ms. Delport, who appeared
for VBS,
accepted that there was no breach of Moorcroft AJ’s order.
Wisely, she declined to make out a case of constructive
contempt,
given that constructive contempt is only committed where a party acts
maliciously to frustrate the ability of a court
to decide an issue
that it has not yet been able to determine.
6
The situation in this case is different. Although most
reasonable people would consider that Moorcroft AJ’s judgment
cleared
the way for VBS to go and get the property back from the
Sheriff, his order does not expressly, or by necessary implication,
forbid
any of the respondents from doing what they did.
7
It was not suggested that I should develop the law of contempt
to apply to situations in which a party acts inconsistently with a
court order’s unstated, but reasonably apprehended,
consequences, and I would have been disinclined to do so.
8
Ms. Delport did not identify any other basis on which VBS
could demand the return of the property, and none was pleaded. The
property
is the hotly-contested object of a contractual dispute about
the sale of a business, and the issue of who has the right to possess
the property is unlikely to be clear cut.
9
For all these reasons, the application must fail. Mr.
van
Nieuwenhuizen asked for a dismissal with costs, but I do not see why
Dr. Koekemoer’s and Amlike’s attorney’s
sharp
conduct should be rewarded to that extent.
10
The application is dismissed, with each party paying their own
costs.
S D J WILSON
Judge of the High Court
This judgment is handed
down electronically by circulation to the parties or their legal
representatives by email, by uploading
to Caselines, and by
publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed
to be 22 September 2023.
HEARD ON: 19
September 2023
DECIDED ON: 22
September 2023
For the Applicant:
B Delport
Instructed by
Lanham-Love Galbraith-Van
Reenen Inc
For the Respondents:
HP van Nieuwenhuizen
Instructed by
Coetzee Attorneys