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[2010] ZAWCHC 616
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Solomon and Another v Van der Schyff (16977/2009) [2010] ZAWCHC 616 (9 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 16977/2009
In
the matter between:
MARIN
SOLOMON
…......................................................................
First
Applicant/Plaintiff
KAY
SOLOMON
…...................................................................
Second
Applicant / Plaintiff
and
MOHAMED
SEDICK VAN DER SCHYFF
…....................................
Respondent
/ Defendant
JUDGMENT
DELIVERED : 9 DECEMBER 2010
MOOSA,
J:
The
Contempt of Court proceedings:
[1]
In this matter the applicants sought the following relief:
(a)
That
the defendant is declared in contempt of this honourable Court's
order
dated 3 September 2009 and
(b)
That
a warrant is authorised for the arrest and detention of the
defendant.
The contempt proceedings arise from judgment in default
of plea ("default judgment")
granted by the court in
action proceeding instituted by the applicants against the
defendant
for specific performance based on a building contract.
The applicants were the plaintiffs
and the respondent was the
defendant in such proceedings. For the sake of convenience
respectively.
The
Facts:
[2]
Most of the facts are either common cause or undisputed and are as
follows:
(i)
On
7 February 2007, the plaintiffs and the defendant entered into a
building contract ("contract") in terms of which the
defendant agreed to complete a partially completed dwelling ("the
building") at an agreed contract price.
(ii)
On
15 October 2008, the plaintiffs sued the defendant for breach
of
contract arising from defective workmanship.
(iii)
On
9 March 2009, the plaintiffs obtained default judgment against
the
defendant in terms whereof he was compelled to remedy the
defects in
the building as set out in the "Property
Diagnostic Services" report, which
was annexed to the
Summons.
(iv)
On
3 September 2009, an order was taken by agreement between the
parties. In terms of such order, the defendant was found to be
in
contempt of court of the default judgment and was ordered,
inter
alia,
to
provide the plaintiffs within one week with a detailed schedule and
timelines when the work will be completed. Should the defendant
fail
to perform, as stipulated, the Sheriff of this Court was authorised
to arrest and detain the defendant for contempt of court.
(v)
On
21 September 2009, the defendant provided the plaintiff with a
schedule and timelines in terms of the said court order dated
3
September 2009.
(vi)
On
27 October 2009, the parties concluded a written agreement in
terms
of which the timelines were extended and provision was made
that the failure to comply with such timelines would tantamount to
contempt
of court and a warrant of arrest shall be authorised for the
defendant. The latter agreement was not made an order of court.
(vii)
Both
the father of defendant, Ismail van der Schyff and the
defendant
approached the plaintiffs for financial assistance to
complete the work as
the defendant did not have the necessary
financial resources to pay his
workers or complete the work in
accordance with the timelines agreed to.
The plaintiffs refused to
give the defendant such financial assistance.
(viii)
On
21 January 2010 the defendant, while busy with a labourer to
remedy
the defects in the garage, was ordered off the site and was
prevented
from continuing with the work.
The
Law:
[3]
Civil contempt has been described as the
"wilful
and mala fide"
refusal
by the offender to comply with an order of court of competent
jurisdiction
(Consolidated
Fish Distributors (Pty) Ltd v Zive
1968
(2) SA 517
(C) at 522B-C).
Fakie
NO v CCII Systems
(Pty)
Ltd
[2006] ZASCA 52
;
2006
(4)
SA
326
(SCA) is the
"locus
classicus"
on
contempt of court in civil proceedings. In describing it as a civil
proceeding that invokes a criminal sanction or its threat,
the court
sets out the test for disobedience of a civil order as follows in
para 9:
"...whether
the breach was committed 'deliberately and mala fide'".
The
court went on to say that:
"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 case good
faith avoids the infraction. Even a refusal to comply that
is
objectively unreasonable, may be bona fide."
[4]
The onus is on the plaintiffs to prove that the defendant is in
contempt of the court order, but once the plaintiffs establish
(a)
the existence of the court order; (b) its service on the defendant
and (c) non-compliance with such order, the evidential burden
shifts
to the defendant to establish, on the basis of a reasonable doubt,
that non-compliance was not wilful and/or
mala
fide
or
if it is wilful, it is not
mala
fide.
Mere
refusal to perform in accordance with an order of court does not
necessarily amount to challenging the authority of the court.
If the
defendant fails to discharge that evidential burden, the offence
would have been established beyond reasonable doubt
(Fakie
NO
(supra)
at
paras 9 and 22 and
Consolidated
Fish Distributors
(supra)
pages
522E-H and 524A-D).
The
Evaluation:
[5]
It is common cause that on 3 September 2009 the parties obtained a
court order by agreement in terms of which the defendant
was found to
be in contempt of the default judgment. The defendant was not legally
represented and appeared in person. The judgment
was granted for
specific performance, but did not have an alternative claim for
damages. I will leave open the question of whether
an unrepresented
litigant can agree to be declared in contempt of a default judgment.
I will, for the present purposes, assume
in favour of the plaintiffs,
without making a formal finding that the order obtained on 3
September 2009 was valid and enforceable.
[5]
It is further common cause that on 27 October 2009, the parties
entered into a subsequent agreement in terms whereof the dates
provided for in the said court order for compliance with the building
activities were amended by extending the dates of compliance
thereof.
The said agreement also contained certain additional clauses which
were not covered by the court order dated 3 September
2009. The said
agreement was not made an order of court. I will once more assume in
favour of the plaintiffs without making a formal
finding in respect
thereof, that the said agreement did not supersede the court order of
3 September 2009 and for all intents and
purposes were valid and
enforceable.
[6]
It is also common cause that the defendant was a party to the court
order of 3 September 2009 and I will assume in favour
of the
plaintiffs, without once more making a formal finding in respect
thereof, that the defendant was aware and had knowledge
of the
contents of such order. I will also assume in favour of the
plaintiffs, without making a formal finding in respect thereof,
that
the defendant had failed to comply with the terms of such order.
[7]
In the circumstances the evidential burden shifted to the defendant
to show that his non-compliance was not wilful and/or
mala
fide.
I
will examine the facts to show whether or not the defendant has
discharged such burden.
[8]
It is common cause that the defendant had substantially completed
the work, in terms of the contract, by 18 December 2009
when the
plaintiffs were handed possession of the dwelling. It appears that
what remained was the "snag" list of remedial
work. It is
common cause that the defendant's father returned to the site after
18 December 2009 to attend to some of the items
on the snag list.
The undisputed evidence is that prior to 18 January 2010, defendant
found himself in financial difficulties
and was unable to pay his
workers nor able to complete the work as agreed. He requested
financial assistance from the plaintiffs
but such assistance was
refused.
[9]
It also appears from the contents of the agreement of 27 October
2009, that the defendant found himself in financial difficulties
as
this is clearly reflected in clause 7 of the agreement which states
the following:
"Defendant
shall ensure that he secures the required funds to comply with the
court order and PDS reports, Council plans
and the original
contract. A lack of funds or insufficient funds shall not be a valid
reason for any delay in the completion
of the contract or reason for
late compliance of the court order."
[10]
It is common cause that on 21 January 2010, while the defendant was
attending to remedy items on the snag list, the plaintiffs
ordered
the defendant off their property and accordingly prevented him from
carrying out further work on the property. The conduct
of the
plaintiff effectively prevented the defendant from completing
compliance with the provisions, if any, of the court order
dated 3
September 2009. I agree with the defendant that the plaintiffs
continually shifted their goal posts and introduced new
terms to the
agreement.
The
Finding:
[11]
I am satisfied that on the undisputed evidence, the defendant has
substantially complied with the provisions of the court
order dated
3 September and such provisions that he was not able to comply with,
was due to circumstances beyond his control.
I am satisfied that he
has discharged the evidential burden of showing that his
non-compliance with the court order dated 3 September
2009 was not
wilful and/or
mala
fide.
In
the circumstances the plaintiffs have failed to prove beyond
reasonable doubt that the defendant is guilty of contempt of court.
In the premises the plaintiffs' application is dismissed with costs.
E MOOSA