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[2013] ZAECPEHC 29
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SPR Logistics CC v Subramoney and Others (3713/12) [2013] ZAECPEHC 29 (18 June 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : PORT ELIZABETH
CASE NO. 3713/12
In the matter between:
SPR LOGISTIC CC
...........................................................................
Applicant
and
DHURMAN SUBRAMONEY
.
.................................................
1
st
Respondent
ALMEFLASH (PTY) LIMITED
............................................
2
nd
Respondent
EUGENE SUBRAMONEY
......................................................
3
rd
Respondent
JUDGMENT
GRIFFITHS, J.:
[1] The applicant in this matter seeks various orders as
against the three respondents all of which are predicated on a
decision
as to whether or not the respondents, or any one of them,
have committed acts which amount to contempt of an order of this
court
granted by Schoeman J on 20 November 2012. The orders sought
vary from the putting into operation of a suspended sentence in
relation
to the first respondent, to effective sentences of
imprisonment suspended for certain periods of time and fines.
[2] All three respondents have opposed the application
and have delivered answering affidavits in response to the
allegations made
in the founding affidavit of the applicant and the
matter served before me on 30 May 2013 as an opposed application. In
their answering
affidavits, the respondents contented themselves with
a series of, in some instances, bald denials, and statements that the
allegations
made by the applicant in the founding affidavit are
argumentative in nature and do not warrant a response. The net effect
of these
answering affidavits, read as a whole, was that none of the
respondents regarded themselves, in any manner of speaking, to be in
contempt of the relevant court order. Nowhere, however, in these
answering affidavits did the respondents suggest that there were
disputes of fact which ought to be dealt with by way of oral evidence
despite the fact that, as I will seek to demonstrate later
in this
judgment, serious allegations were made by the applicant to the
effect that the respondents have violated the relevant
court order.
Late in the afternoon before the matter was to be heard, heads of
argument were filed on behalf of all three respondents
in which, once
again, no request was made for the matter to be referred to oral
evidence on any issue alleged to be in dispute.
[3] When the matter was called before me, I asked Mr.
Dala, who appeared for all three respondents in these proceedings, as
to whether
he was satisfied that the matter should merely be argued
on the papers as the respondents had at no stage requested the matter
be referred to oral evidence. His initial response was to the effect
that he would argue the matter and then perhaps consider, depending
on my attitude, requesting that the matter be so referred. I
indicated to him that,
prima facie
, my view of the matter was
that there are a number of serious allegations in the applicant’s
founding affidavit which have
simply not been responded to or denied
by the respondents and that on this basis alone I might well have to
find that the applicant
has proved these matters beyond a reasonable
doubt.
[4] The matter was thereafter argued on the papers. At
the initial stages of the argument the first respondent was not
present in
court but, after time was given to Mr. Dala to contact his
client, the first respondent arrive at court and sat through the rest
of the proceedings. During the course of his argument, Mr. Dala
invited me to speak directly to the first respondent with regard
to
the question of possible mitigation, in the event that I decided that
he is indeed in contempt of court. I declined this invitation
and
indicated to Mr. Dala that he should address me in this regard on the
instructions of his client. However, at no stage was
any application
made to have this matter referred for the hearing of oral evidence on
any issue pursuant to the provisions of Rule
6 (5) (g).
[5] In order to establish that the respondents are
guilty of contempt, the applicant is required to prove the terms of
the order,
knowledge of those terms by all three respondents, and the
failure by the respondents to comply with the terms of the order.
Should
it so establish these matters beyond a reasonable doubt, it
will normally be inferred that the respondents acted wilfully and
with
bad-faith in their failure to comply with the terms of the
order
1
.
[6] In the present matter, is not in dispute that the
order was granted and that the first and second respondents were
aware of
the terms thereof. The third respondent disputes that he was
aware of the order and all three respondents deny that they have
acted
in contravention of the order. It thus remains incumbent upon
the applicant to establish beyond a reasonable doubt that the third
respondent was aware of the terms of the order, and that all three
respondents acted in contravention thereof. In view of the denial
by
the respondents that they did indeed act in contravention of the
order, should the applicant establish this fact beyond a reasonable
doubt, the evidential onus will shift to the respondents to establish
absence of bona fides and wilfulness.
[7] In terms of the aforementioned court order granted
by Schoeman J, both the first and second respondents were,
inter
alia
, interdicted from conducting business with or soliciting or
attempting to solicit business from any past, existing or future
customers
of the applicant either for their own account or on behalf
of any other person. The order made particular reference to some 42
businesses listed in the order, but did not limit its operation
solely thereto. It was effective from 1 December 2012 for a period
of
three years.
[8] Paragraph 3 of the order dated 20 November 2012
stated as follows:
"That the respondents are interdicted and restrained from
conducting and/or being concerned and/or interested, directly or
indirectly, in any business of the same kind as that carried on by
SPR Logistics CC, being courier and/or transport business, within
the
Eastern Cape Province, Knysna, George and Mossel Bay areas. However
the respondents may conduct courier and/or transport deliveries:
3.1 from Port Elizabeth to Bathurst, Cookhouse, Cradock, Fort
Beaufort, Graff Reinet, Grahamstown, Humansdorp, Jeffreys Bay,
Middleburg
(Eastern Cape), Port Alfred, Queenstown and Somerset East
and vice versa."
[9] The facts leading up to the granting of this order
may be briefly stated. On 24 November 2011 the first respondent and
one Chetty,
the sole member of the applicant, concluded a written
agreement in terms whereof Chetty purchased the first respondent’s
interest in and to a business known as Dhurman Subramoney Transport
CC which was referred to therein as "the business".
The
first respondent was at the time the sole member of the Close
Corporation. In terms of the agreement, Chetty also purchased
the
trade name of the business which was "Ben's Express".
[10] The agreement also provided for a form of a
restraint of trade in terms of which the first respondent undertook
not to, without
the applicant's written consent:
"1. solicit or attempt to solicit business from any past,
existing or future customers of the business either for his own
account or for that of any other person;
2. Be concerned or interested, directly or indirectly, in any
business of the same kind as that carried on by the business within
the Province of the Eastern Cape."
[11] The applicant has alleged in its founding affidavit
that the purpose of the restraint of trade was to protect the
applicant's
business prospects, client base and trade secrets because
of the fact that the first respondent has in-depth and thorough
knowledge
of the operations, rates, prices, income, expenditure,
assets, client base, client information, staff and procedures of the
business
sold, which information the first respondent could have used
to undermine the ability of the business to compete competitively.
In
addition, the first respondent had devised the computerized logistics
system of the business and was fully
au fait
therewith which
knowledge he could have used to the disadvantage of the applicant. He
had also assisted in the training of the
applicant and his wife
regarding the operation of the business and had long standing
relationships with the business clients.
[12] Subsequent to the purchase thereof, Chetty changed
the name of the Close Corporation to SPR Logistics CC. The business
conducts
courier and transport services throughout the Eastern Cape
and beyond, in Knysna, George and Mossel Bay.
[13] The applicant alleges that during the period August
2012 to November 2012 the first and second respondents breached the
terms
of the restraint of trade agreement in various respects. The
applicant further alleges that the breaches were in furtherance of
the first and second respondents’ active attempts to expand
their courier and transport business, to gain a larger client
base
and to lure the applicant’s clients away from it, in
competition with the applicant.
[14] Despite a number of warnings being issued to the
first and second respondents, they apparently did not desist from
their unlawful
actions which ultimately resulted in an urgent
application being launched out of this court seeking an interdict.
This matter was
heard on 20 November 2012 on which day an agreement
was struck consequent upon which the order of court (dated the same
date) was
granted by agreement. At the time of the granting of this
order, the first and second respondents had instructed their legal
representatives
to agree thereto and their said legal representatives
were present in the chambers of Schoeman J when the order was
granted. First
and second respondents were, accordingly, fully aware
of the nature, terms and extent of the restraint order.
[15] Despite the existence of the restraint order, the
first and second respondents continued to act in breach of the
agreement
and, indeed, the restraint order. This culminated in a
further urgent application on the part of the applicant as against
the first
respondent seeking an order that the first respondent be
held in contempt of court, together with allied relief. This was once
again opposed by the first respondent and was ultimately argued
before Smith J on 21 December 2012. Smith J, in an
ex tempore
judgment, dismissed the first respondent’s opposition and found
him to be in contempt of court. He sentenced the first respondent
to
six months imprisonment which he suspended for a period of three
years on condition that the first respondent not be found guilty
of
contempt of court during the period of suspension, together with a
fine of R15,000.
[16] Because of its importance
vis a vis
the
alleged conduct of the respondents in the present application, it is
necessary to record certain aspects of the application
which served
before Smith J. Smith J in his judgment dealt with the alleged
breaches of the court order in that matter as follows:
“
1. On 1 December 2012 the respondent (first
respondent in these proceedings) had informed one of his employees,
namely Trushen Padayachee,
that he had no intention of abiding by the
court order. He planned to start a courier company of which his son,
Eugene Subramoney
would be the face. That company would provide
courier and transport services in the East London and Garden route
areas. He also
told Padayachee that once the company had been
established he would approach all the applicant’s clients to
give their business
to the new company instead of the applicant.
2. On 6 December 2012 the respondent had also subcontracted courier
services to deliver two parcels for NCS Resins (PTY) Ltd.,
one parcel
was to be delivered to a company in Plettenberg Bay and the other to
a company in the Craggs. The Applicant attached
two waybills in
respect of the said deliveries which indicated that the respondent
was operating the business under the name of
Ben's Transport and that
he had provided courier and transport services to NCS (PTY) Ltd…..
3. On 7 December 2012 the branch manager of Courier Services, one
Sarah Marais had seen the Respondent visiting the premises of
Eagle
Work Wear in his 8 ton truck. The respondent had also informed Marais
that he had started a new courier and transport company
operating
under the name of Ben's Transport, which would provide courier and
transport services in the East London and Garden route
areas.
4. On 7 December 2012, one of the applicant's employees namely
Renganathan Pillay was informed by an employee of Courier Services
(one of the applicant's customers) that the respondent had personally
approached them on 6 December 2012 and attempted to solicit
courier
and transport work from them. The Respondent had proposed to
subcontract Courier Services to carry out courier and transport
services in the Garden route area, including Plettenberg day, Knysna,
George and Mossel Bay, and that in exchange Courier Services
would
sub-contract the Respondent to carry out courier and transportation
services in the East London area. The respondent had
informed them
that he was conducting the business under the name of Ben's
transport."
[17] Smith J further stated with regard to the answering
affidavit delivered on behalf of the first respondent that:
"
The respondent has filed an answering
affidavit. He deals with the Applicant’s comprehensive
allegations regarding the alleged
incidents of contempt, in a rather
terse and perfunctory manner."
[18] Later in his judgment Smith J dealt with the denial
by the first respondent that he had any connection with Ben's
Transport
as follows:
"Mr. Moorhouse has correctly submitted that it is improbable
that the Respondent has no connection with Ben's Transport. His
assertion that the company belongs to his son (the third respondent
in these proceedings) and that he does not have any connection
with
it is implausible for the following reasons:
His son had never owned or operated his own courier company
He does not have a client base and
He had no resources to start a courier and transporting any on his
own.
He had been the operations manager of (the second respondent), the
company which the Respondent had established for the sole
purpose of
evading the terms of the restraint agreement.
I pause here to mention that this allegation is made in paragraph 21
of the Applicant's founding affidavit and has not been denied
by the
Respondent.
The format of the invoices utilized by Ben's Transport is almost
identical to that which was used by (the second respondent).
Except
for the name, the invoices bear the same business address, telephone
and facsimile numbers.
The fact that the invoices reflect Eugene as the person who accepted
the parcels on behalf of Ben's Transport is of no consequence
as he
was also the person who had accepted parcels on behalf of (the
second respondent)."
[19] Having made these observations, Smith J proceeded
to state:
"
The inference is therefore ineluctable that
the company that was ostensibly started by the Respondent's son (the
third respondent
in these proceedings), immediately after he had been
prohibited in terms of the court order from involvement in the
courier and
transport business, was part of a stratagem devised for
the sole purpose of enabling the Respondent to circumvent the
consequences
of the court order”.
[20] Smith J finally concluded:
"
I am for these reasons of the view that the
Respondent's version is so far-fetched, implausible and unworthy of
credence that it
should be rejected out of hand. The Respondent has
not put up any facts to cast reasonable doubt on the ineluctable
inference that
his conduct was wilful and mala fide."
And later:
"It is clear that the Respondent never intended to comply with
the order. Soon after the order became operational, he informed
his
staff that he did not intend to comply with it and immediately set
about assisting his son to establish a courier and transportation
business with the sole purpose of evading the consequences of the
court order. Ben's Transport was then established with the thinly
disguised façade of being an independent company owned by his
son. He had however immediately commenced to actively solicit
business on behalf of Ben's Transport from the Applicant's clients
and continued to do so in a brazen fashion even after he was
given
notice of these proceedings."
[21] On an examination of the papers in this matter, it
is clear that the applicant has, once again, put up a comprehensive
set
of papers fully itemizing and describing in extensive detail the
infractions it alleges the applicant has perpetrated against the
restraint order since Smith J delivered the aforementioned judgment.
Once again the first respondent, and indeed, the second and
third
respondents, have responded thereto in a very similar manner to the
first respondent's answers in the earlier contempt application
which,
as Smith J described them, are "terse and perfunctory".
From these answering affidavits it however becomes clear
that the
respondents do not contest the fact that the restraint of trade
agreement exists, that the first and second respondents
were, by way
of the restraint order, interdicted from breaching the restraint
agreement in the respects itemized in the restraint
order, and that
Smith J found them to be in contempt of the restraint order. Is
furthermore common cause that neither the first
nor second respondent
applied for leave to appeal against the order of Smith J and that
that order has accordingly remained extant
and in force since it was
made on 20 December 2012.
[22] It is furthermore evident from the answering
affidavits that the respondents candidly admit that the second
respondent has,
ever since the granting of the contempt order,
continued carrying on the business of courier services within the
area of the restraint.
They, however, contend that the first
respondent has since resigned as a director from the second
respondent and that the third
respondent has taken over control
thereof. They had considered a deregistration of the second
respondent as a company but decided
that this was too lengthy and
expensive and that it would be far simpler to merely change the
trading name to "Titan Transport".
This they did, and they
accordingly maintain that this change of control in the company and
change of trading name is sufficient
to avoid the rigours of the
restraint order.
[23] On analysis of the papers and apart from the
factors mentioned in the preceding paragraph, it appears that the
following allegations
made by the applicant in its founding affidavit
are accepted by the respondents as being common cause, or are at
least uncontroverted
in the answering affidavits:
That the second respondent is currently and has for
some time been conducting a courier and transport business within
the area
of the restraint;
That the second respondent is currently rendering
courier and transportation services to NCS Resins (PTY) Ltd. within
the area
of the restraint;
That during March 2013 the first respondent, together
with an employee of the second respondent, transported and delivered
goods
to a business known as Betcrete in East London for the company
NCS Resins (PTY) Ltd., again within the area of the restraint;
That, on 10 May 2013, the first respondent attempted to
solicit courier and transporting work which was to be conducted
within
the East London and George areas, from SA Logistics for and
on behalf on the second respondent and this with the third
respondent's
knowledge;
That, again on 10 May 2013, the first respondent
informed a certain Mr. Blignaut (an area manager of South African
Logistical
Company (PTY) Ltd.) that the second respondent was in
fact his business and that he operated this business together with
the
third respondent. He furthermore informed Blignaut that he, that
is the first respondent, was conducting courier and transport
work
for various clients in Port Elizabeth by transporting their goods to
the East London and George areas;
That, the first respondent's name appears on the
company profile of the second respondent that was sent to Mr.
Blignaut after
a discussion had been held between the first
respondent and Blignaut relating to a quote for courier and
transport services.
That the first respondent had solicited and obtained
courier and transport business from NCS Resins (PTY) Ltd.
That the second and third respondents are indeed
obtaining monetary benefit from the courier and transport business
which they
are providing.
[24] The undisputed matter mentioned in subparagraph
five above requires further elaboration in view of its importance.
The first
respondent did not mention the existence of the restraint
order or the subsequent contempt order to Mr. Blignaut but did
mention
that he had sold his previous business known as "Ben's
Express". During this discussion Blignaut requested the first
respondent to send him a quote together with certain necessary
information. Later on the same day such documentation was sent to
Blignaut from the e-mail address "titanexpress@telkomsa.net”.
Copies thereof were annexed to the founding affidavit.
[25] This documentation consisted of a letter, a company
profile, a credit application and a quotation. From it the following
facts
emerge:
That the second respondent operates as "Titan
Express" from the address 31 Driedoorn Street, Malabar, Port
Elizabeth;
The name of the first respondent appears that the
bottom of the letter;
The second respondent provides courier and transport
services throughout the whole of the Eastern Cape;
The second respondent maintains a fleet of transport
vehicles, all of which are itemized in this documentation. It is not
disputed
that most of these vehicles belong to the first respondent.
[26] Whilst the respondents denied that the e-mail with
the attached documentation was sent by the first respondent, alleging
that
it was sent by the third respondent, of significance to this
matter is the fact that it was not denied that the meeting took place
between the first respondent and Blignaut, nor indeed did they deny
the discussions at the meeting as alleged by Blignaut.
[27] This does not end there. A supplementary affidavit
from Blignaut was filed some time after the respondents had delivered
their
affidavits. Disturbingly, in that affidavit Blignaut stated
that on 16 May 2013 he received a telephone call from a certain
"Theo",
a person whom he stated "is employed by the
first respondent". The further paragraphs of this affidavit bear
repeating:
" 5. I asked Theo as to the reason for his call whereby he
informed me that it is regarding the quotation that his boss
forwarded
to me on Friday 10 May 2013, whereby Theo and the First
Respondent attended my business premises on the aforementioned date
in
order to discuss the quotation that I required.
6. Theo accused me of setting a trap for his boss, the First
Respondent by requesting a quotation from him, whereby I told him
this was nonsense.
7. I asked him why he is phoning me since he is just the driver and
his boss should contact me whereby he told me that the First
Respondent instructed him to call me.
8. I told him I was not prepared to speak to him whereby he
threatened me and told me that I should be careful.
9. I immediately went to the Kabega Park Police Station and made an
affidavit, detailing the content of my telephonic conversation
with
Theo, attached hereto and marked annexure "K1"."
[28] Not only is the significance of this affidavit
clearly apparent, but at no stage did the respondents seek to file
further affidavits
or in any manner contest the content of what is
stated in this affidavit by Blignaut. Accordingly, the evidence of
Blignaut dealing
with the meeting on 10 May 2013 and with the
subsequent interaction with Theo, remains entirely uncontested.
[29] As I have stated earlier in this judgment, it is
incumbent upon the applicant to establish its case beyond a
reasonable doubt.
The SCA has put its stamp of approval on the normal
civil procedure of establishing these facts in motion proceedings
2
.
Froneman J (as he then was) in a full bench decision of the Eastern
Cape had this to say with regard to the incidence of the onus
in
contempt proceedings which are brought on notice of motion:
"
Secondly, it should be kept in mind that
application or motion proceedings are primarily geared to a
determination of issues on
the basis of facts that are not in
dispute. Normally applications are decided on the basis of facts set
out by the respondents,
together with other admitted facts in the
applicant's papers. In such a case, or where it appears that no bona
fide or genuine
dispute of fact arises from the papers, the issues
are determined on essentially undisputed facts, by their very nature
already
accepted as beyond doubt, not only reasonable doubt."
3
[30] And later:
“
Lastly, where a higher standard of proof
may well play a role is (1) in the manner of drawing inferences from
these undisputed facts,
(2) in determining disputes of fact on the
papers alone, and (3) in the approach to determining facts in dispute
where there has
been a referral to oral evidence. All these potential
difficulties can be overcome, however.
If inferences need to be drawn from the undisputed facts it would
have to be kept in mind that the ultimate inference as to the
guilt
of the offender must be the only reasonable inference and not merely
the most plausible or probable one.
The "robust" approach to determine disputed facts on paper
might have to be reconsidered or adapted, but that kind of
approach
is in any event rarely and then only very circumspectly applied."
[31] In approaching this matter on this basis, it seems
to me that there is no doubt whatsoever that the first respondent has
simply
continued to disobey the restraint order, despite the clear
warning given to him by Smith J in the earlier contempt proceedings.
This is clearly evidenced by,
inter alia
,
the evidence of Blignaut. Not only is this evidence uncontested by
all three respondents but there is no evidence placed before
me which
would tend to dilute the force of Blignaut's evidence. For example,
the respondents have not stated that Blignaut might
in any way be
biased towards them, or any one of them, for any reason whatsoever.
On the contrary, it seems that the relationship
between the first
respondent and Blignaut was nothing but cordial until Blignaut became
aware of the fact that the first respondent
was acting in
contravention of the court order.
[32] This is further underpinned by the subsequent
attempt by the person Theo to undermine the force of Blignaut's
evidence by what
can only have been a threat of some sort of harm in
the event that Blignaut proceeded to stand by his testimony in these
proceedings.
Theo's clear statement that he was acting on the
instructions of the first respondent establishes, together with all
the other
evidence, beyond any doubt that the first respondent
contravened the court order with bad intent.
[33] As regards the first respondent, there are two
further aspects which point to his ongoing disobedience towards
orders of court.
Mr. Moorhouse has brought to my attention that
during the course of these proceedings, the respondents were put on
terms by way
of court order to file their papers by a certain date.
This was completely disregarded. However, of more importance, is the
fact
that the first respondent was ordered by Smith J in his judgment
dated 21 December 2012 to pay a fine of R15,000. To date, this
has
not been paid and no explanation whatsoever has been put up in his
affidavit, or by way of submission in court, as to why this
fine has
not been paid.
[34] As regards the second respondent, the only defence
put up has been that it is no longer trading under the name of "Ben's
Transport" but now trades under the name of "Titan
Transport". The respondents have attempted to argue that they
believed this would be sufficient to avoid the rigours of the
restraint order. They have stated that they did not deregister the
company as this would be too long and expensive. Mr. Dala has argued
that this is reasonable by virtue of the fact that the first
respondent and his son, the third respondent, are mere laymen and do
not understand the law.
[35] This argument is, in my view, totally unfounded.
The respondents have openly conceded that the second respondent has
continued
trading in the area designated in the restraint order and
to that extent this clearly amounts to a contravention of the order.
The only argument can therefore be that the second respondent
continued to trade in this manner unwittingly, and without the intent
to disobey the order or in bad faith.
[36] The first and second respondents have, throughout
these proceedings, the restraint and first contempt proceedings, been
legally
represented. It seems to me therefore that either they failed
to ask their legal representatives for advice as to whether their
actions would amount to a contravention of the order, or that they
made such a request but were given incorrect advice. The latter
was
neither advanced in their answering affidavits nor presented in
argument by Mr. Dala. Insofar as the former proposition may,
possibly, be inferred from the answering affidavits, if this was so
it seems to me that in doing so they acted in bad faith as
they
realized that their legal advisors would correctly advise them that
the respondent is a juristic entity which has been interdicted
and
restrained from carrying on such business in the designated areas and
that to trade under a different name would make no difference
whatsoever. In other words, they clearly practiced a form of "wilful
blindness". It seems to me that there can be little
doubt but
that this was a further "stratagem devised for the sole purpose
of enabling the Respondent to circumvent the consequences
of the
court order", to borrow from the words of Smith J.
[37] Regarding the third respondent, as indicated
earlier in this judgment Mr. Dala has argued that there is
insufficient proof
that he was aware of the restraint order. I beg to
disagree. It is common cause that he is the son of the first
respondent and
that they both lived at the same residence from which
the business is operated. Mr. Dala has sought to argue, without any
foundation
in fact, that because the first and third respondents are
Indians, it is common knowledge that they lived together in an
extended
family situation. As I have said, there is no factual basis
whatsoever for this and neither, in my view, is there is sufficient
foundation before me to take judicial notice thereof as being
factually correct. In my view, the factual matrix to this matter,
as
it existed from before the restraint order was granted, clearly
indicates that the first and third respondents are fully
au fait
with each other's business dealings and, indeed, the third respondent
has learned his trade from the first respondent.
[38] On a reading of the judgment of Smith J it is
furthermore clear that the third respondent was fully implicated in
the matters
which gave rise to that application. In this regard he
stated:
"It is clear that the Respondent (first respondent in these
proceedings) never intended to comply with the order. Soon after
the
order became operational, he informed his staff that he did not
intend to comply with it and immediately set about assisting
his son
to establish a courier and transport business with the sole purpose
of evading the consequences of the court order. Ben's
Transport was
then established with the thinly disguised façade of being an
independent company owned by his son (the third
respondent in these
proceedings). He had however immediately commenced to actively
solicit business on the half of Ben's Transport
from the Applicant’s
clients and continued to do so in a brazen fashion even after he was
given notice of these proceedings."
[39] It seems to me that it is patent from this and
various other factors that the third respondent colluded with the
first respondent
in a further stratagem to avoid the consequences of
the restraint order. The third respondent maintains that the second
respondent's
business is conducted by him and him alone. This is
clearly given the lie to when one has regard to the evidence,
inter
alia
, of Blignaut. Pertinently in this regard, the third
respondent maintains that it was he who had sent the e-mail with the
attached
documentation relating to quotes etc. to Blignaut, not the
first respondent. Accepting Blignaut's evidence as to the previous
meeting
with the first respondent and the fact that Blignaut had
requested the first respondent to send him a quote, one can only but
conclude
with little doubt that either this e-mail was sent by the
first respondent himself, or that, if the third respondent did indeed
send it, it was sent on the instructions of the first respondent.
[40] I should add further (as mentioned above) that
neither the first nor the second respondents have applied for leave
to appeal
against the judgment of Smith J and that that judgment
accordingly remains in force to this day. This is also an indication
of
an implied acceptance on the part of these respondents of the
facts, circumstances and reasoning as set out by Smith J in that
judgment.
[41] Based on the foregoing, I am satisfied that the
applicant has proved beyond a reasonable doubt that all three
respondents were
fully aware of the restraint order and that they
knowingly pursued their business in contravention thereof. As I have
indicated,
there is an evidential onus on them to establish lack of
intent and
mala fides
. In my view, the facts of this matter
show with little doubt that the respondents intended by their
machinations to subvert the
restraint order and thereby acted in bad
faith. In the circumstances, I find that it has been established
beyond a reasonable doubt
that all three respondents are in contempt
of the court order granted on 20 November 2012.
[42] Because of their attitude to this matter, the
respondents placed nothing before me by way of affidavit to mitigate
the severity
of their actions. Belatedly, and because I pointed to
the fact that many of the serious allegations in the papers remain
uncontroverted,
Mr. Dala sought to apologize on the part of the first
respondent. He also sought to apologize on the part of the third
respondent
but it was pointed out to him that the third respondent
was not at court and had not apologized in his answering affidavit.
Mr.
Dala then pointed to an allegation in the third respondent’s
answering affidavit to the effect that he had apologized for
having
run "Ben's Transport" in contravention of the court order.
This however relates to the factual matrix giving rise
to the first
contempt order and not to these proceedings. In the circumstances, it
seems to me that the third respondent has not
placed before this
court any form of apology.
[43] Apart from various suggested sentences for all
three respondents relating to the contempt of court under review in
this application,
the applicant seeks an order that the suspended
sentence imposed by Smith J be put into operation. I have already
dealt with the
fact that the first respondent's actions in this
matter smack of a clear and deliberate attempt to avoid the
consequences of the
restraint order. In addition, and as stated by
Plaskett J in the matter of
Victoria Park
Ratepayers Association v Greyvenouw CC
4
"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…. 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."
[44] This is the second time that the first respondent
has been found to be guilty of contempt of the same court order. On
the first
occasion he was given an opportunity by way of a suspended
sentence and a fine to desist from his misguided ways. He obviously
did not regard this as being of any consequence to him as he merely
continued to flagrantly flout the operation of the law by dismissing
the various court orders with contempt. Should I give him a further
suspended sentence, I have little doubt that he will merely
continue
to disregard the powers of this court. In my view, the time has come
for him to learn for once and for all that court
orders have all the
force of law behind them and ought to be heeded. In the
circumstances, I intend to put the suspended sentence
into operation.
Furthermore, I believe that it would be apposite for the first
respondent to have a further suspended sentence
hanging over his head
which will hopefully serve as a "sword of Damocles" in
order to prevent him from any future transgressions.
[45] As regards the second and third respondents, I
believe that a fine and a suspended sentence respectively would be
fitting.
[46] In these circumstances, I grant the following
order:
The first respondent is declared to be in contempt
of the court order granted by this court under case number 3713/12,
dated 20
November 2012;
The suspended sentence imposed by this court on 21
December 2012 on the first respondent is to be brought into effect
immediately
and the first respondent is accordingly sentenced to six
months imprisonment;
The first respondent is to commence serving the
sentence referred to in paragraph 2 of this order within 48 hours of
the service
of this order upon him;
In the event of the first respondent failing to
present himself in order to serve the aforesaid sentence the Sheriff
of this court
with the assistance of the South African police
services if necessary, is hereby directed and authorized to take the
first respondent
into custody;
The first respondent is ordered to pay the fine
imposed upon him by this court on 21 December 2012 within 48 hours
of this order
being served upon him;
The first respondent is further sentenced to nine
months imprisonment in respect of the aforementioned contempt which
period of
imprisonment is totally suspended for a period of three
years from the date of this order on the condition that the first
respondent
not be found guilty of contempt of court during the said
period of suspension;
The second respondent is declared to be in contempt
of the court order granted by this court under case number 3713/12
dated 20
November 2012;
The second respondent is find R30,000 in respect of
the aforesaid contempt which fine shall be paid within one month of
the service
of this order on the second respondent;
The third respondent is declared to be in contempt
of the court order granted by this court under case number 3713/12
dated 20
November 2012;
The third respondent is sentenced to six months
imprisonment, which period of imprisonment is totally suspended for
a period of
three years from the date of this order on the condition
that the third respondent not be found guilty of contempt of court
during
the aforesaid period of suspension.
The respondents are ordered to pay the costs of this
application on the attorney and client scale, jointly and severally,
the
one paying the other to be absolved.
JUDGE OF THE HIGH COURT
HEARD ON : 30 MAY 2013
DELIVERED ON : 18 JUNE 2013
COUNSEL FOR APPLICANT : Mr Moorhouse
INSTRUCTED BY : Kuban Chetty Attorneys
COUNSEL FOR RESPONDENTS : Mr Dala
INSTRUCTED BY :Wilke Weiss Van Rooyen Inc.
1
Fakie
NO v CCII Systems (PTY) Ltd.
[2006] ZASCA 52
;
2006 (4) SA 326
SCA; Burchell v
Burchell 3 November 2005[2006] J0L (E) at paragraph 5
2
Fakie’s
case – see footnote 1
3
Burchell
(supra footnote 1) at paragraph 24
4
[2004]
3 All SA 623
(SE)