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[2023] ZAFSHC 36
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M.O v J.C.O (44013/2020) [2023] ZAFSHC 36 (16 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
44013/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
In
the matter between:
M
[….] O
[….]
Applicant
and
J
[….] C [….] O
[….]
Respondent
CORAM
:
TSANGARAKIS,
AJ
HEARD
ON
:
26
JANUARY 2023
DELIVERED
ON
:
16
FEBRUARY 2023
INTRODUCTION
[1]
The controversy in this opposed application, as is often the case in
proceedings concerning civil contempt,
arises from of a deed of
settlement concluded between the parties which was made an order of
this Court on 25 May 2022 (“the
25 May order”).
[2]
The deed of settlement was concluded pursuant to the institution of a
divorce action prosecuted by the applicant
(as plaintiff) against the
respondent (as defendant).
[3]
At issue in this application, over and above the aspect of civil
contempt, is also the question as to the
manner in which the content
of paragraphs 4 to 4.2 of the deed of settlement ought to be
interpreted. The paragraphs, as aforesaid,
read thus:
“
4.
Dat
die Verweerder aan die Eiseres oordra as haar eiendom die Mercedes
Benz motorvoertuig met registrasie nommer 320 [....] FS
(hereinafter
referred to as “the motor vehicle”)
en
verder onderworpe aan die volgende voorwaardes:
4.1 Dat die
verweerder aanvaar om Kunden Motors se rekening te betaal ten einde
‘n diagnostiese toets te doen
en alle redelike herstelwerk soos
diagnosties bepaal te doen.
4.2
Dat sodanige diens verrig sal word binne ‘n periode van 30 dae
vanaf datum van egskeiding.
”
THE
FACTUAL MATRIX
[4]
The more pertinent facts have as their provenance a previous
application for contempt between the applicant
and the respondent
(“
the first contempt application
”).
[5]
The first contempt application was issued by the Registrar of this
Court on 1 August 2022 and was also
prosecuted by the applicant
against the respondent. By way of the first contempt application the
applicant moved for an order that
the respondent be found to be in
contempt of paragraphs 1.1, 1.2, 4.1 and 4.3 of the 25 May order.
[6]
The first contempt application was, pursuant to the granting of the
rule
nisi
, subsequently withdrawn by way of an order to this
effect granted on 15 September 2022.
[7]
In the first contempt application, which was also partly pivoted upon
a proposition of contempt on the part
of the respondent in respect of
inter alia
paragraph 4.1 of the deed of settlement aforesaid,
the respondent met this part of the applicant’ case in that
application
on the following basis:
“
9.
Repairs
on vehicle
:
9.1.
In terms of paragraph 4.1. of the Deed of Settlement, it makes
specific reference to a diagnostic test to be conducted
on the
Applicant’s vehicle and that
reasonable
repairs, based
on the outcome of the diagnostic test, should be conducted wherefore
I would be liable for payment.
9.2.
I submit that to date, I have not received any report or outcome of a
diagnostic test that was conducted on the Applicant’s
vehicle
nor have I received a quotation and/or invoice that needs to be paid
before the diagnostic test can be conducted.
9.3.
I have merely received a quotation from Kundendienst Trust in the
amount of R47 995.00 with items listed. The quotation
does not
give any indication that a diagnostic test was conducted and based on
the outcome thereof, the listed items on the quotation
were
identified as necessary repairs to the vehicle. I attach hereto the
quotation as
Annexure ‘RA10’
.
9.4.
Further to this, I have arranged for the Applicant’s vehicle to
be duly serviced at Kundendienst Trust in June
2022, of which I have
made payment in the amount of R1 957.75 for this service. I
attach hereto the Tax Invoice as
Annexure ‘RA11’
.
9.5.
I have arranged and paid for the service of the vehicle which
constitutes reasonable and necessary repairs.
9.6.
Once I have received the outcome of the diagnostic test, I will be
able to identify further reasonable repairs that are
necessary on the
vehicle and arrange for those repairs to be made.
”
[8]
The respondent, by way of his answering affidavit, initially joined
issue with the applicants requested incorporation
of the evidence
evident from the first contempt application in her founding papers.
During argument, however, counsel for the respective
parties were in
agreement that judicial cognisance ought to be taken of paragraph 9.6
of that answering affidavit as reproduced
above.
[9]
To my mind it is inappropriate to fail to also take judicial
cognisance of the allegations made in the founding,
answering and
replying affidavits, relevant to paragraph 4.1 of the deed of
settlement, in the first contempt application. This
is so because
context is everything, the evidence relevant thereto is readily
available and such evidence is reliable in the sense
that it
constitutes evidence deposed to under oath by the parties and relates
to one of the very issues which has arisen for adjudication
by way of
the present application.
[10]
In
Grootkraal v Botha 2019 (2) 128 (SCA)
Wallis JA
explained the position as follows at paragraph [21] (footnotes
omitted):
“
Much
of what follows is drawn from these sources and has been used to
complete and correct the picture drawn by the parties in their
affidavits. The court may take judicial notice of such material when
it is readily available and reliable, however it comes to
the court’s
attention….. In the present case the problems with the
evidence and summary of its impact where put to
counsel in the course
of argument and left unchallenged.”
[11]
The allegations made by the applicant in her founding affidavit,
deposed to in support the relief which she sought by
way of the first
contempt application, are uncontentious and the same need not be
dealt with in detail other than to record that
the necessary
jurisdictional requirements to establish civil contempt were pleaded
on this particular score.
[12]
By way of her replying affidavit in that application, the applicant
replied to the afore-reproduced paragraphs of the
respondent’s
answering affidavit as follows:
“
27.
AD PARAGRAPH 9 THEREOF
:
27.1
I took the motor vehicle to Kundendienste Trust in order to determine
what must be repaired and the latter inspected the motor
vehicle
whereafter they prepared a “report” containing eight (8)
entries and six comments. They have also prepared
a job card which
contains a summary of the “repair/ services required” and
a quotation. I append copies of the aforementioned
documents hereto
and I mark them annexure “
K
”, annexure “
L
”
and annexure “
M
” respectively.
27.2
Mr Botha, who is employed by Kundendienste Trust, informed me that
the aforementioned documents were sent to the Respondent
who, after
having received the same, unilaterally instructed the Kundendienste
Trust to perform an oil and filter service. The
latter complied with
the aforementioned instruction and after having performed the same,
it rendered a ‘Technical Report
of Work Done’, a copy of
which is appended hereto and marked annexure “
N
”,
as well as the invoice referred to in the Opposing Affidavit to the
Respondent.
27.3
The fact of the matter is that for the last 15 years or so the
Kundendienste Trust was responsible for providing the necessary
mechanical services to the Respondent’s vehicles while the
Respondent trusted their judgment and expertise. The Kundendienste
Trust examined the motor vehicle and indicated as to what repair work
is necessary. Surely the Respondent is not suggesting that
his
mechanic of choice is all the sudden quoting for unnecessary
expenses. This is once again indicative of the fact that the
Respondent is simply obstructive.
27.4
Be that as it may, the Respondent has no basis to reject their report
and if he was bona fide, he could have discussed the
same with the
Kundendienste Trust to satisfy himself that the repair work is
reasonable and necessary. It is further clear from
the invoice
itself, i.e. annexure “
RA11
” to the Opposing
Affidavit, that not all necessary work was performed because the
bonnet shocks must be replaced, the rear
brake pads will not last
until the next service, boot lock to be replaced, front lower control
arms and ball joints to be replaced,
rear ac control units to be
replaced. If the Respondent was bona fide, he would have attended to
these expenses, yet he refused
to do so and insists that I must drive
with this defective car.
27.5
On 1 July 2022 my Attorney of Record addressed a letter to the
Respondent’s former Attorney of Record requesting the
latter to
attend to the repair work mentioned identified by the Kundendienste
Trust and I append a copy thereof hereto marked annexure
“
O
”.
No meaningful response was forthcoming from the Respondent raising a
real and bona fide concern regarding the aforementioned
report and
work to be rendered.
”
[13]
I will deal with the further pertinent facts more fully under the
headings “EVALUATION” and “CONCLUSION”
below.
THE
REQUIREMENTS FOR CIVIL CONTEMPT AND THE INTERPRETATION OF THE 25 MAY
ORDER
[14]
The principles of civil contempt are well established and have formed
the subject-matter of numerous judgments.
[1]
[15]
An applicant who alleges contempt of court must establish that:
15.1
An order was granted against the respondent;
15.2
The respondent was served with the order or had knowledge of it; and
15.3
The respondent failed to comply with the order.
[16]
Once these elements have been established, willfulness and
mala
fides
are presumed and the respondent bears an evidentiary burden
to establish reasonable doubt. If the respondent fails to do so,
contempt
will be established.
[17]
A refusal to comply that is objectively unreasonable may, however, be
shown to be
bona
fide
which will then avoid a finding of civil contempt although
unreasonableness could establish evidence of a lack of good faith.
[2]
[18] Insofar as to
the manner in which the 25 May order ought to be interpreted the
Supreme Court of Appeal stated the general
principles applicable to
the interpretation of documents, whatever their nature, in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
as
follows:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax: the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible, each possibility must be weighted in light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of a document. Judges must
be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible
or businesslike for the words
actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact
made. The “inevitable
point of departure is the language of the provision itself”,
read in context and having regard
to the purpose of the provision and
the background to the preparation and production of the document.
All
this is consistent with the “emerging trend in statutory
construction”. It clearly adopts as the proper approach
to
the interpretation of documents the second of the two possible
approaches mentioned by Schreiner JA in Jaga v Dönges
NO
and another, namely that from the outset one considers the
context and the language together, with neither predominating
over
the other. This is the approach that courts in South Africa should
now follow, without the need to cite authorities from an
earlier era
that are not necessarily consistent and frequently reflect an
approach to interpretation that is no longer appropriate
.”
[3]
[19] The
Constitutional Court approved the aforesaid exposition of the law in
University
of Johannesburg v Auckland Park Theological Seminary and Another
.
[4]
[20] In the more
recent decision of
HLB
International v MWRK Accountants
[5]
the Supreme Court of Appeal was called upon to consider the
principles applicable to the interpretation of a court order that was
granted by the Gauteng Division of the High Court, Pretoria (Davies
AJ).
[21] Having
considered significant developments in the law which,
inter
alia
,
included a consideration of the judgments historically delivered in
the matters of
Firestone
South Africa (Pty) Ltd v Genticuro AG
,
[6]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[7]
and
Bothma-
Batho
Transport
EDMS
Bpk
v
S Bothma Seun Transport
(Edms)
Bpk
,
[8]
the Supreme Court of Appeal concluded in paragraphs [26] to [28]
thus:
“
[26]
The now well-established test on the interpretation of court orders
is this:
‘
.
. . The starting point is to determine the manifest purpose of the
order. In interpreting a judgment or order, the court’s
intention is to be ascertained primarily from the language of the
judgment or order in accordance with the usual well-known rules
relating to the interpretation of documents. As in the case of a
document, the judgment or order and the court’s reasons
for
giving it must be read as a whole in order to ascertain its
intention. …’
[27] The manifest
purpose of the judgment is to be determined by also having regard to
the relevant background facts which culminated
in it being made. For
as was said in KPMG Chartered Accountants (SA) v Securefin
Ltd and Another, ‘context
is everything’.
[28] A fairly recent
illustration of the linguistic, contextual and purposive approach to
the interpretation of a judgment or order
is to be found in Elan
Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd, in which it
was said that ‘[a]n order
is merely the executive part of the
judgment and, to interpret it, it is necessary to read the order in
the context of the judgment
as a whole’, and-
‘…
[a]s
part of the “usual well-known rules” of interpretation,
according to Olivier JA, is-
“
dat
mens jou nie moet blind staar teen die swart-op-wit woorde nie, maar
probeer vasstel wat die bedoeling en implikasie is van
wat gesê
is. Dit is juis in hierdie proses waartydens die samehang en
omringende omstandighede relevant is”.
(Footnotes
omitted.)
Loosely
translated:
‘
One
should not stare blindly at the black-on-white words, but try to
establish the meaning and implication of what is being said.
It is
precisely in this process that the context and surrounding
circumstances are relevant.’
”
EVALUATION
[22]
During the hearing of this application the respective parties’
positions as to that which fell to be adjudicated
(or not
adjudicated) upon by me crystalised as follows:
22.1 There exists no
dispute on the papers that the 25 May order was granted against the
respondent and that the respondent had
knowledge of such order. These
facts are therefore common cause; and
22.2
In issue is whether or not the respondent failed to comply with the
25 May order. The answer to this question lies in the interpretation
of the 25 May order in respect of which there exists a dispute
between the parties. If such failure is established on an objective
interpretation of such order, then and in that event the respondent’s
case is that he has discharged the evidentiary burden
which rests
upon him by raising reasonable doubt in the sense that he at all
times acted in good faith.
[23]
I therefore deal with the aspect of interpretation of the 25 May
order first.
[24]
The founding affidavit, filed in support of the relief by way of the
present application, makes the usual allegations
relevant to the
jurisdictional elements required to establish civil contempt.
[25]
It is further evident from the allegations made, and annexures
referred to, in the founding affidavit that the diagnostic
test was
only conducted on the motor vehicle on 5 October 2022. At first
blush, it would therefore appear that this test was conducted
several
months outside the period of time envisaged in the 25 May order.
[26]
On a synopsis of the respondent’s case, as to the manner in
which the order of 25 May order falls to be interpreted,
the
respondent pleads that the purpose of paragraphs 4.1 and 4.2 (as
reproduced in the “
INTRODUCTION
” to this
judgment) is to ensure the finality of the matter and that the
respondent is not liable for any further repairs
after the 30 days
have passed. Moreover, so the respondent pleads, the respondent only
received a quote within the 30-day period
provided for in the order
and no diagnostic test was timeously submitted as this agreed to test
was only performed on 5 October
2022.
[27]
The respondent further alleges that he has consequently complied with
the 25 May order, insofar as it placed any
obligations upon him
to do so, and that the repairs arranged and paid for by him (in the
amount of R1 957.75) were reasonable,
sufficient and in
satisfaction of the 25 May order.
[28]
In reply the applicant contends that upon a sensible and
business-like interpretation of the paragraphs in issue of the
25 May
order, they illustrate that their purpose was to ensure that:
28.1
The applicant receives a good and roadworthy motor vehicle upon
divorce;
28.2
The respondent’s liability to repair the motor vehicle is
limited to those defects which existed as at 24 June 2022 i.e.
thirty
days pursuant to the 25 May order;
28.3
The purposes of the diagnostic test was to determine and identify any
defects in the motor vehicle which were in existence
up and until 24
June 2022, to identify the nature and repair of work required to
repair the aforementioned defects, to provide
the costs thereof to
the respondent and to ensure that the respondent is not liable to
repair any defects which may have arisen
pursuant to 24 June 2022;
28.4
In due compliance of the 25 May order the Kundendienst Trust
inspected the motor vehicle and prepared a job card, which contained
a summary of the “
repairs / services required
”, a
report as well as a written quotation which all transpired within the
30-day period; and
28.5
In and because of the evidence deposed to by the respondent, in
paragraph 9.6 of the first contempt application, the content
of which
has been reproduced above, logic dictates that if the respondent
truly and honestly believed that he was relieved of the
duty to
render any repair work, because the diagnostic test and the
subsequent repair work were not rendered within the 30-day
period,
then there would have been no need to tender performance upon receipt
of the report because the 30-day period has already
prescribed
without the repair service being rendered when the aforementioned
affidavit was deposed to. The respondent’s submissions
as the
manner in which the court order falls to be interpreted, so the
argument of the applicant goes, constitute an inappropriately
raised
afterthought.
[29]
The applicant, relying heavily on the judgments of
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[9]
and
Soffiantini
v Mould
,
[10]
urged me to take a robust view and reject the interpretation of the
Court order as assserted by the respondent.
[30]
In rebuttal of the applicant’s argument, as aforesaid, counsel
for the respondent argued that on an objective and
purposeful
interpretation of the allegations made in the first contempt
application, the context of the facts and surrounding circumstances,
that then existed, illustrate that whether or not the diagnostic test
on the vehicle had been timeously attended upon was as a
fact to the
respondent unknown at that stage. If the respondent was aware of such
fact he would have raised the defence which it
raises in respect of
the present application.
CONCLUSION
[31]
The relief that the applicant seeks is final in effect. Moreover, it
is of a serious nature given the possible incarceration
of the
respondent that civil contempt of proceedings can possibly attract.
[32]
To my mind, there appears to be factual disputes which are material
and relevant as to the manner in which the 25 May
order falls to be
objectively interpreted which are incapable of being adjudicated upon
the papers.
[33]
This difficulty is further exacerbated by the fact that material
documents produced by the Kundendienst Trust, which
documents feature
heavily in the respective cases of both the applicant and the
respondent insofar as the question of the interpretation
of the 25
May order is concerned, constitute inadmissible evidence. The
applicant, alive to this issue, explains that one Mr Botha
of said
trust refuses to depose to a confirmatory affidavit on the basis that
he does not wish to become embroiled in the parties
acrimonious
dispute. The applicant requests that such facts be admitted into
evidence.
[34]
It is trite that:
[34.1]
Inadmissible
evidence is by its very nature irrelevant and irrelevant evidence
need not be responded to nor does it justify any
negative inference
if irrelevant evidence is not responded to;
[11]
[34.2]
The weight placed on evidence contained in affidavits therefore
depends on the evidence, the weight to be placed
on what is in the
affidavits depends on its relevance and admissibility;
[12]
and
[34.3]
Inadmissible evidence has no probative value.
[13]
[35]
Although it is so that neither of the parties moved for a referral of
the aspect of interpretation of the 25 May 2022
to oral evidence a
Court may, in the exercise of its discretion, make such referral.
[36]
In
Du Plessis en ‘n Ander v Tzerefos
1979 (4) SA 819
(O)
at 838 A - B
the following is stated:
“
Nie
een van die party het op enige stadium aansoek gedoen dat die
aangeleentheid vir mondelinge getuienis verwys moet word nie of
dat
een van die deponente aan kruisverhoor onderwerp moes word nie. ‘n
Hof kan egter ook mero motu ‘n bevel van sodanige
strekking
maak: Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) te 1165; Oertel NO v Pieterse and Others
1954 (3) SA
364
(O) te 368.
”
[37]
Taking all of the facts relevant to the issue of interpretation of
the 25 May order into account in my view, and in the
exercise of my
judicial discretion, the aspect of the interpretation of the 25 May
order falls to be referred to oral evidence.
[38]
Insofar as the costs of the application are concerned, the same ought
to stand over for later adjudication.
ACCORDINGLY,
THE FOLLOWING ORDER IS GRANTED
:
1.
The matter is referred for the hearing of oral evidence, at a date
and
at a time to be arranged with the Registrar, on the issue of the
interpretation of paragraphs 4, 4.1 and 4.2 of the settlement
agreement made an order of Court on 25 May 2022;
2.
Unless the Court otherwise directs, in relation only to the issue
referred
to oral evidence:
2.1
The parties are entitled to call any witness who deposed to any
affidavit in these application
proceedings;
2.2
The parties are obliged to make available for cross-examination such
witnesses who deposed
to affidavits in these proceedings to the
extent that such party persists in seeking to place any reliance on
that person’s
evidence in the affidavits;
2.3
The parties are entitled to call any further witnesses who were not
deponents to affidavits
in these application proceedings:
2.3.1
Provided that such party has at least 30 court days before the date
of the hearing of oral evidence
served on the other party a statement
of the evidence in chief to be given by such person;
2.3.2
Subject to the Court, at the hearing of the oral evidence, permitting
such further witnesses to be
called notwithstanding that no such
statement has been served in respect of his or her evidence;
2.4
The parties may subpoena any witness to give evidence at the hearing
or to furnish documents
whether such person has consented to furnish
a statement or not in relation to the issue referred to oral
evidence;
2.5
A party who has served a witness statement in terms of sub-paragraph
2.3.1 above or has
subpoenaed a witness shall not oblige such party
to call the witness concerned;
2.6
Uniform Rule 35 will apply to the discovery of affidavits.
3.
The remaining issue in the application, being the issue of the
respondent’s
civil contempt of the 25 May 2022 order,
stands over for determination on the affidavits filed by the parties
to date by the
Court referred to in paragraph 1 above.
4.
The costs of this application stand over for adjudication.
S.
TSANGARAKIS, AJ
On
behalf of the Applicant: Adv
J.C. Coetzer
Instructed
by: Honey
Attorneys
Bloemfontein
On
behalf of the Respondent: Adv
M.C.M. Pieterse
Instructed
by: Horn
& Van Rensburg Attorneys
Bloemfontein
[1]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA).
Pheko
v Ekurhuleni City
2015 (5) SA 600
(CC).
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
2021 (5) SA 327
(CC).
[2]
Fakie
NO v CCII Systems (Pty) Ltd
supra
at
para [9].
[3]
2012 (4) SA 593
(SCA) paragraphs [18] and
[19].
[4]
2021 (6) SA 1
(CC) paragraphs [64] to [68].
[5]
2022 (5) SA 373 (SCA).
[6]
1977 (4) SA 298
(A) at 307A to 308A.
[7]
2012 (4) SA 593 (SCA).
[8]
2014 (2) SA 494
(SCA) paragraph [12].
[9]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at paragraphs [12]
and [13]
[10]
1956 (4) SA 150
(ED) at 154G to H.
[11]
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999 (2) SA 279
(T) at 336 F – F;
Supreme
Court of Appeal, confirming Swissborough judgment, in a matter of
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA).
[12]
Goldfields
Ltd and Others v Motley Rice LLC
2015 (4) SA 299
(GJ) at par. [128]
[13]
Giesecke
and Devrient Southern Africa (Pty) Ltd v Minister of Safety and
Security
2002
(2) SA 137
(SCA) at par [30]