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[2010] ZAGPPHC 294
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Mooipan Boerdery CC v Ufudu Transport (Pty) Ltd and Another (67934/2009) [2010] ZAGPPHC 294 (15 January 2010)
IN THE NORTH
GAUTENG HIGH COURT - PRETORIA
(REPUBLIC OF
SOUTH AFRICA
CASE
NUMBER 67934/2009
DATE:
15 JANUARY 2010
THE HONOURABLE
ACTING JUDGE ROEL OF DU PLESSIS
In the
application of
MOOIPAN BOERDERY
CC
And
UFUDU TRANSPORT
(PTY) LTD
....................................
First
Respondent
PERCY NDABA
MASINGA
.........................................
Second
Respondent
JUDGMENT
INTRODUCTION AND
BACKGROUND
[11 This matter has
a long history of approximately 16 court orders which have ail been
granted in the applicant's favour since
February 2008. Not one of the
court orders has satisfactory been executed I do not regard it
necessary to refer
[2] An application
was brought by the applicant Mooipan Boerdery CC, for an order in
terms of the relief sought in the notice of
motion which was set out
as follows:
‘1. That this
application be heard as an urgent application in terms of Rule 6 (12)
of the rules of the above Honourable Court,
and that all requirements
pertaining to service and the time periods provided for in the rules
of the above Honourable Court may
be dispensed with.
2 That the third
respondent be and is hereby ordered to proceed with the sale in
execution scheduled for 25 November 2009 in terms
of which the second
respondent's shares in the first respondent is to be sold in
execution.
3 That the order
granted on the 1SP of December 2008 under case number 10288/2008 be
and is hereby set aside and/or rescinded.
4.
4.1 That an order
for the eviction of the first and second respondents and all persons
occupying the premises, as described in annexure
"A' to the
court order in case
number 10288/2008
granted on 16 May 2008 annexed to the founding affidavit as annexure
J'is hereby granted
4.2 That the first
and second respondents be and are hereby ordered to vacate the said
premises by not later than 2 days after the
date of this order
4.3 In the event
that the first and second respondents have not vacated the said
premises within 2 days, the third respondent Is
hereby authorised and
required to carry out the eviction ord&r Immediately by removing
from the said premises the first and
second respondents and all
persons who occupy the premises through them.
5. Declaring that
the first and/or second respondents are in contempt of court
6. Ordering the
second respondent to bo incarcerated for a further period of 60 days,
altematr/ely for a period the court determines,
for contempt of
court.
7. That the fourth
respondent be and is hereby ordered to'
7.1 ensure that the
court orders granted in case number 10288/2C08 annexed to the
founding affidavit as annexure mFm to "H\
"J’, "K"
and "M’ and this order is promptly enforced against the
first and second respondents;
and
7.2 assist and
protect the applicant and its employees against the unlawful and
intimidating conduct of the first and second respondents
and their
associates.
7.3 assist the third
respondent in the eviction of the first and second respondents from
the premises.
7.4 arrest and
detain and/or arrange for the detention of the second respondent fora
period of 30 days.
8. That the
respondents, jointly and severalty, be and are hereby ordered to pay
the costs of this application on an attorney and
client scale '
[3] After having
heard argument, I granted an order on 24 November 2009 in terms of a
draft order in which I ordered the following.
’1. The order
granted on the 19* of December 2008 under case number 10288/2008 be
and is hereby set aside and/or rescinded
2. The third
respondent be and is hereby ordered to proceed with the sate in
execution scheduled for 25 November 2009 in terms of
which the second
respondent's shares in tne first respondent Is to be sold in
execution
3.
2.1 That an order
for the eviction of the first and second respondents and all persons
occupying the premises, as descnbed in annexure
’A' to the
court order in case number 10288/2008 granted on 16 May 2008 annexed
to the founding affidavit as annexure V*
be and is hereby granted
2.2 That the first
and second respondents bo and are hereby ordered to vacate the said
premises by not later than 2 days after the
date of this order
2.3 In the event
that the first and second respondents have not vacated the premises
within 2 days, the third respondent is hereby
authorised and required
to carry out the eviction order immediately by removing from the
premises the first and second respondents
and all persons who occupy
the premises through them.
3. The fourth
respondent has undertaken and shall:
4.1 assist the third
respondent in ensuring that the court orders granted in case number
10288/2008 annexed to the founding affidavit
as annexures ‘F’
to ‘H‘, V“ and VC and "M" and this order
are promptly enforced against
the first end second respondents, if so
requested by the applicant and/or the third respondent; and
4.2 assist and
protect the applicant and its employees against the unlawful and
intimidating conduct of the first and second respondents
and their
associates, if so requested by the applicant and/or the third
respondent, and
4.3 assist the third
respondent in the eviction of the first and second respondents from
the premises, if so requested by the third
respondent, and
4.4 arrest and
detain and/or arrange for the detention of the second respondent in
respect of any existing court order
4. Ordering the
first and second respondent, jointly and severalty, be and are hereby
ordered to pay the costs of this application
on an attorney and
client scale including the costs of two counsel one of v/hich is a
senior counsel.
6 No cost order is
granted against the fourth respondent *
(4) The relief
sought in the notice of motion, set out in prayers 5 and 6 of the
notice of motion stood down until later in the
week during which I
neard urgent applications for final determination. I have already
given reasons for the aforementioned order
[5] An application
for leave to appeal, as has been the usual approach by the first and
second respondents In respect of court orders,
was filed immediately
thereafter It was then dealt with together with
adjudication of
prayers 5 and 6 of the notice of motion. There was no appearance when
this relief was considered and I therefore
granted an order in terms
of another draft order on 26 November 2009. in terms of which I
ordered the following-
"1. The
application, dated 16 December 2008. for rescission of the order of
Bertelsmannn J granted on 27 October 2008 is dismissed
with costs,
such costs to be on an attorney and own client scale, including the
costs of senior and junior counsel.
2. The second
respondent is declared to be In contempt of court.
3. The second
respondent is to be incarcerated for a period of 120 days for
contempt of court.
4. The follov/ing
officers and/or members of the South African Police Services are
specifically tasked to execute the order for
the incarceration of the
second respondent, namely:
4.1 Senior
Superintendent Moodley (Station Commander Midrand) Tel 011-3471600
Cel 082 828 6032 Faks 011 312 0595
4.2 Senior
Superintendent Nyati (Ermelo Station Commander).
5 The second
respondent be and is hereby ordered to pay the costs of this
application on an attorney and own client scale. Including
the costs
of senior and junior counsel"
[6] I also dismissed
the application for leave to appeal against my previous order and
ordered that the first and second respondents'
application for leave
to apoeal dated 25 November 200S did not suspend the sale In
execution of the shares In the first respondent,
that took place at
approximately 10h00 on 25 November 2C09 In any event the application
for leave to appeal was served and filed
after the sale had already
taken place.
[7] I was also
requested to grant an order that the application dated 16 December
2007 for rescission of the order of Bertelsmann
J that was granted on
27 October 2008. should be dismissed with costs, as reflected in the
second order I had given referred to
above. These are the reasons for
that order
[8] It is apparent
from that application that there were no prospects of success
demonstrated to have that order rescinded, either
in terms of rule
42 (1) (a) of the rules of this court, or in terms of the common law
or on any other basis. No real defence was
illustrated to
substantiate the application for rescission of the order of
Bertelsmann J, which order was granted on 27 October
2008. On 27
October 2008 there was an application for postponement which was
dismissed and a well considered order was given by
Bertelsmann J.
which included an order for the incarceration of the first
respondent. It was not clear on what basis the application
for
rescission was brought and there was no reference in the application
to the fact that the order was erroneously sought or erroneously
granted in terms of rule 42 (1) (a). On a proper reading of the
application, that could have been the only basis for seeking
rescission
of that judgment.
[9] I was therefore
satisfied that no proper application on the merits for rescission of
that judgment was made out by the first
and second respondents and I
therefore ordered that the application be dismissed with costs, such
costs to be on an attorney and
own client scale including the costs
of senior and junior counsel, as referred to in the order above. I
granted the costs order
on the basis of the continuous misuse and
abuse by the first and second respondents of the court procedures, as
are dearly reflected
in the approach of the first and second
respondents to the litigation explained above, and which appears in
the papers of all the
previous proceedings and in my previous
judgments’ I also came to the conclusion that second respondent
should be declared
to be In contempt of court and that he should be
incarcerated for a period of 120 days for contempt of court These are
the reasons
for the order.
[10] The history of
the facts of this matter show dearly the second respondent’s
total disregard and contempt for court orders
Wherever the
respondents could, they utilised delaying tactics to frustrate
hearings of matters, and to avoid incarceration. The
applicant stated
that the first and second respondents have frustrated every inch of
the execution process regarding sale of the
property. The order of
incarceration granted by Bertelsmann J was not executed The second
respondent operated freely and had In
fact, before the matter came
before me, unlawfully evicted the applicant from the relevant
business premises without a court order
The applicant attempted to
execute cost orders that he obtained against the first and second
respondents, without success, and
he failed to execute an order for
payment of R1.3 million against the first respondent. Notwithstanding
all tne court orders that
were obtained, the applicant had been
evicted again from the premises and the first and second respondents
were again operating
from the premises Neither the SAPS nor the
sheriff of the court rendered ' AC CK«fS: law of Ccarts pages
3-8 to 3-14; 4-1B
(2) to 4-24; Joxf/n v IVcdffowoocf
2003 (5) SA 472
<W); Giovagoofi v Di'Meo
1950 (3) SA 393
(D); Phitttps v Bctoa
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA}; Benash v Wixhy
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA). Bmmmer v
Gcffi Brothers Investments (Pty) £ rtf
1999 (3) SA 389
(SCA)
any assistance to the applicant to have the existing previous court
orders executed, including the court order of Bertelsmann
J.
[11] Masinga is
apparently a very influential businessman with links to the SAPS and
the government and in particular the local
SAPS office in Ermelo as
well as the shehffs office. He apparently acts as if he is above the
law.
[12] In fact the
SAPS, instead of arresting Masinga in terms of the court order of
Bertelsmann J. visited the business premises
and attempted to arrest
and lock up Mr Cilliers of the applicant Furthermore high-ranking
officials of the Department of Trade
and Industry threatened the
applicant that he should not carry on with business from the relevant
business premises. Such behaviour
is deplorable.
[13] The following
paragraph in the founding affidavit is also of extreme importance,
namely:
"There is a
current order for the incarceration of Masinga for a period of 30
days because of Masinga's contempt of court.
Masinga has been evading
and/or avoiding his arrest and the implementation of the order since
27 October 2008."
(14] The applicant
further states that Masinga has since that date been represented by
Attorneys TP Moloto & Co of Benoni/Gauteng.
notwithstanding the
fact that an order for second respondent’s incarceration was in
existence.
[15J The second
respondent filed an opposing affidavit on behalf of himself and the
first respondent, wherein he dealt with the
relief sought pertaining
to contempt of court against him. Regarding the paragraph referred to
above, he simply stated the following:
'The contents of the
said paragraphs are noted.r
[16] Therefore. In a
brazen and totally contemptuous way. the second respondent states and
admits under oath in his answering affidavit
that he has been evading
and avoiding his arrest and Implementation of the court order since
27 October 2008
(17] He. and the
first respondent, of which he is the director and driving force, have
therefore filed applications for leave to
appeal and applications for
rescission of judgment :n respect of most court orders that have been
granted. Other orders were simply
ignored. Second respondent was
allowed by the SAPS and the relevant sheriff to act as the applicant
states, with impunity, as a
result of h« apparent high level
connections in the SAPS, and in the government. Forced sales in
execution to execute the
many orders had been arranged, which could
not be proceeded with as first and second respondents in an unlawful
and underhand manner
frustrated the execution process time and again
The second respondent is also apparently not averse to acting without
legal sanction
as appears from the fact that on 25 September 2009 he.
with force, evicted the applicant from the relevant business premises
That
was done on 26 February 2008 as well, through second respondent
personally and six bodyguards, who simply threw the applicant out
of
the business premises, wrth an agg'essive and intimidating approach.
{18} The first and
second respondents have ignored court orders, they refused to adhere
to court orders, and the way in which the
order of Bertelsmann J was
approached, illustrates that the secono respondent knew very well
what the court orders entailed. He
simply refused to comply with the
court orders There is no doubt in my mind that his refusal was
intentional and wilful
[19] Although his
attorney was notified of the fact that this part of the relief would
be heard and dealt with simultaneously with
the application for
:-eave to appeal against the first order that I had granted, his
attorney chose to wnte a letter to the court
indicating that the
attorney had become ill and that he was not able to attend at court.
I granted sn opportunity until the next
day for the respondents to
obtain other legal representation, which they did not do. They
therefore had ample opportunity to appear
before me to state their
views, and their attempt to have the matter postponed again m this
fashion did not succeed
[20] I therefore
granted an order that the second respondent was declared to be in
contempt of court and that he should be incarcerated
for a period of
120 days for contempt of court.
[21] In Fakio NO v
CCII Systems (Pty) Lid the Supreme Court of Appeal finally laid to
rest all the different disputes pertaining
to contempt of court
proceedings in a criminal environment, and a civil environment. The
Supreme Court of Appeal came to the conclusion
that in a civil
matter, the onus is that of proof beyond reasonable doubt, similar to
the burden of proof In a criminal matter
The test to determine
contempt of court has been stated as whether the breach was committed
deliberately and mala fide. The non-
compliance should be both wilful
and mala fide and must be a deliberate and intenbona! violation of
the court's dignity, reputation
and authority There must therefore be
conclusive proof of the requisite elements beyond reasonable doubt.
Unless a respondent then
provides evidence raising reasonable doubt
as to whether non-compliance was wilful and mala fide, the requisites
of contempt will
have been established
[22] In my view
there is no doubt that such a case was made out by the applicant in
this matter, and therefore I granted the order
that the second
respondent was declared to be in contempt of court and that he should
be Incarcerated for a period of 120 days.
I am of the view that the
history of this matter, the actions of the first and second
respondents, the wilful and mala ride disregard
and disobedience to
the court orders, attempts to avoid court orders, and on the second
respondent’s own affidavit, the admission
that he had been
evading and/or avoiding his arrest and the implementation of a court
order since 27 October 2008. leaves me with
me with no doubt that the
second respondent has committed contempt of court and that he should
be incarcerated for the time period
provided for In the order The
character of tne incarceration order in question is of a punitive
nature. It is necessary for the
court to assert its authority and
dignity as an example for others. In this particular Instance, it is
necessary to set an example.
I have experienced, during two weeks of
hearing urgent applications, a huge number of instances where court
orders were simply
ignored, not abided by. and treated with contempt.
It is necessary to send the message that court orders should be
adhered to.
as it is one of the pillars of our modern democratic
constitutional dispensation, and forms an integral part of the
principle of
the rule of law
[23] In my view the
time period of 120 days under these circumstances, and with reference
to the particular facts of thts matter,
is appropriate. It is of no
use to refer to other matters to obtain a comparative indication of
time periods applicable to contempt
proceedings, as the facts differ
in each case. In my view the second respondent should experience the
authonty of the courts, and
be taught respect for the courts and the
rule of law.
BY ORDER OF
COURT:
REGISTRAR