About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 96
|
|
Mokoena and Others v Masoeu and Others (4373/2021) [2023] ZAFSHC 96 (27 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 4373/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PULENG
MARIA
MOKOENA
1
st
Applicant
REMASOEU
PULENG FUNERAL HOMES {PTY) LTD
(Reg.
no.: 2020/625672/07) 2
nd
Applicant
REMASOEU
THATO FUNERAL (PTY) LTD
(Reg.
no.: 2020/625369/07) 3
rd
Applicant and
MARIA
MPOTSENG NHLAPHO-MASOEU
1
st
Respondent
LYDIA
MOSIDI MASOEU THAELE
2nd
Respondent
MATSHEPO
SARAH MASOEU-LECHE
3
rd
Respondent
IN RE:
MARIA
MPOTSENG NHLAPHO-MASOEU
1
st
Applicant
LYDIA
MOSIDI MASOEU THAELE
2
nd
Applicant
MATSHEPO
SARAH MASOEU-LECHE
3
rd
Applicant
and
PULENG
MARIA
MOKOENA
1
st
Respondent
REMASOEU
PULENG FUNERAL HOMES (PTY) LTD
(Reg.
no.: 2020/625672/07) 2
nd
Respondent
REMASOEU
THATO FUNERAL (PTY) LTD
(Reg.
no.: 2020/625369/07) 3
rd
Respondent
MASTER
OF THE HIGH COURT
,
BLOEMFONTEIN
4
th
Respondent
CORAM:
VANZYL,
J
HEARD
ON:
20
OCTOBER 2022
DELIVERED
ON:
27
MARCH 2023
[1]
This is an application in terms whereof the
applicants are seeking an order that the first to third respondents
be found to be in
contempt of the court order dated 27 January 2022,
issued under the above case number. They are also seeking the
following consequential
relief:
"1.2 That the
respondents be imprisoned for a period of one month, alternatively,
that this court impose upon them such
sentence as it considers
appropriate.
1.3
Imposing a fine, such as deemed appropriate
by this court, on the first to third respondents,
jointly and severally.
1.4
Directing the respondents to pay the costs
of the application, jointly and severally, on the scale as between
attorney and client."
Background:
[2]
I will refer to the parties as in the
present application.
[3]
On 23 September 2021 the first to third
respondents approached court on an urgent basis for interdictory
relief.
On the
said date Loubser, J issued the following order:
"1. The application
is found and held to be urgent and the applicants' non-compliance
with the requirements of the Rules of
Court relating to service and
time periods is waved and/or condoned.
2.
The first respondent (and second and third
respondents as the case may be) is/are hereby interdicted and/or
restrained from dealing
in and/or transferring and/or disposing of
and/or in any manner alienating the estate of any of the proceeds
therefrom, forming
part of the joint will (attached here marked "A")
of the late Tlala Doctor Masoeu (Id. no. [....]) and Rachel
Motsilisana
Masoeu (Id. no.
[....]);
and
3.
The first respondent (and second and third
respondents as the case may be) is/are hereby interdicted and/and
restrained from dealing
in and/or transferring and/or disposing of
and/or in any manner alienating any part of the estate be it forming
part of a will
and/or any other testamentary document by and/or any
community estate (if any) between the first respondent and the late
Tlala
Doctor Masoeu...; and
4.
The relief set out in paragraphs 2 and 3
above is granted [to] operate as
interim
orders with immediate effect pending
the final determination and outcome of Part B of this application.
5.
The
applicants
are
hereby
ordered
and
directed
to
forthwith
serve on the
respondents:
5.1
5.2
5.3
6.
Calling on the first and/or the [second and
third] respondents to show cause on 28 October 2021 at 9h30 or soon
thereafter as the
matter may be heard why the
interim
orders in paragraph 2 and 3 should not
be made final, and why the respondents should not be ordered to pay
the costs of the application."
[4]
The late Mr Tlala Doctor Masoeu ("Mr
Masoeu") is the first applicant's late husband.
[5]
On the return date of the abovementioned
rule
nisi
the
matter served before Litheko, AJ and on 27 January 2022 he discharged
the rule
nisi
in
the following terms:
"1.
The
rule
nisi
issued
on
the
23rd
September
2021
is
hereby
discharged.
2.
The applicants
are ordered to pay the costs of the
application, inclusive of the costs of 28 October 2021."
The
founding affidavit:
[6]
The first applicant made,
inter
alia,
the following allegations in the
founding affidavit:
"24.
The respondents have failed to restore to me the
control of the business as I was interdicted and/or restrained from
dealing in
any part of the estate, be it forming part of a Will
and/or any other testamentary document by and/or any community estate
(if
any) between myself and the late Tlala Doctor Masoeu.
Inadvertently, the second and third
applicants form part of such estate.
25.
These entities are business which I
conducted/established alongside my deceased husband and since the
rule
nisi
was
issued, I have not been able to oversee the business and the
respondents continue to obstruct my access to such entities.
26.
The first respondent has ten (10)
percent shares in Remasoeu Funeral Home with registration number
2005/099191/23, however me and
Thato have 45 % shares each in
Remasoeu Funeral Home ...
This
Honourable Court is referred to paragraphs 3 and 3.1 of the revoked
Joint Will dated 22 January 2019 marked annexure
'B'
to
the
application
before
this
court
and
paragraph 3.1.6 of the latest Joint Will
dated 8 June 2021 marked
annexure
'PNM4'.
27.
The only reason I refer the court to
these paragraphs is to demonstrate
the
extent of restraint imposed
by
the rule
nisi
and
the extent of my continued prejudice by the respondents' failure to
comply with the court order dated 27 January 2022.
28.
Furthermore, the communal home where
I resided with my deceased husband is subject to the joint estate ...
and I have similarly
been disposed of my access to the house and my
encompassing personal objects since September 2021.
29.
The rule
nisi
has since 27 January 2022 been
discharged; thus, I see no further reason why I should be restrained
from dealing in any of the contents
the estate."
The
answering affidavit:
[7]
In their answering affidavit the first to
third respondents pointed out that the urgent interdictory
application which served before
Loubser, J and Litheko, AJ also
contained a Part B to the notice of motion in terms whereof the first
to third respondents sought
an order in the following terms:
"1.
That the terms
and
provisions
[of
the]
joint will
(attached
herein
marked 'A') of the late Rachel Motsilisana
...
and
late Tlala Doctor Masoeu
...
are valid, upheld and a true reflection
of
the last will and testament of the testators.
2.
That the estate in the joint will reference
in paragraph 1 above is not part of and is specifically excluded from
the community
estate between the first respondent
and the late Tlala Doctor Masoeu.
3.
In addition to, and/or as a consequence
of the above exclusion, the right of
accrual as referred to in the
Matrimonial
Property Act 88 of 1984
as between the
first respondent and the late Tlala Doctor Masoeu is hereby
specifically excluded from any inheritance received
and/or specified
in the joint will above.
4.
Directing the first and second respondent
or any other person who is or may be in possession of the joint will
mentioned above,
to immediately
return
same to the joint estate above."
(sic)
[8]
According to the first to third respondents
Litheko, AJ was requested in a letter of their erstwhile attorneys to
also grant an
order in respect of
Part 8
of
the Notice of Motion and to provide reasons for such an order.
They are still awaiting the response from
Litheko, AJ.
[9]
The first to third respondents further deny
that they are in contempt of the court order dated 27 January 2022.
[10]
The first to third respondents
furthermore
stated as follows
in their answering affidavit:
"39. The applicants'
conduct in bringing this contempt application is an abuse of the
Honourable Court's process and is done
to intimidate the respondents.
40. The applicants are
fully aware that the order they seek to rely on for the application,
does not with respect, addressed itself
to their allegations of
contempt."
[11]
They further stated as follows:
"34. In
amplification, it is denied that the respondents ever obstructed the
applicants from accessing any of the entities
mentioned therein. It
is noted that the applicant does not mention how, when any of such
obstruction, if any, was ever done by
the respondent.
35. It is further denied
that the applicant was ever prevented from accessing the family home
and accessing her personal belongings.
It should be noted that no
basis is provided on how and when this was alleged to have happened."
Replying
affidavit:
[12]
In the replying affidavit the applicants
alleged that the discharge of the
interim
order has far-reaching consequences for
them, more specifically for the first applicant and the uninterrupted
operation of the entities.
Therefore,
it is of paramount importance that the first to third respondents
comply with the court order and release the apparatus
of the business
and also, importantly, grant the first applicant access to the
marital home which she occupied with her deceased
husband.
[13]
The applicants further point out in their
replying affidavit that before the replying affidavit could be filed,
the applicants were
necessitated to approach court by means of an
urgent application under case number 2039/2022 on 4 May 2022 to
interdict and restrain
the first to third respondents from their
various attempts to dissipate and depose of the Estate Late Tlala
Doctor Masoeu's assets.
According
to the applicants, "a//
the more
reason why these contempt proceedings are called for".
[14]
It is furthermore stated that the first to
third respondents took over branches of Remasoeu Funeral Home CC on
10 September 2021,
which was shortly after the first applicant's late
husband's burial.
According
to the first applicant the first to third respondents had instructed
all the branch managers of Remasoeu Funeral Home
CC to give the first
respondent all the premium instalments paid by the clients from all
the branches. The Marquard branch has
been closed down and the third
respondent informed the employees that she is taking over.
[15]
Furthermore, the following is stated in
paragraph 29 of the replying affidavit:
"The respondent(s)
had also removed and replaced the branding of the Remasoeu Funeral
Home CC from all its branches and replaced
with their own company
branding. In addition to this, the respondent(s) have begun removing
or uninstalling the refrigerators that
form an integral part of the
business and which house the corpses. This is an act of destroying
the business and the dispossession
of the contents of the estate."
Condonation:
[16]
The applicants are seeking condonation for
the late filing of their replying affidavit.
[17]
A detailed explanation which led to the
delay is set out in the replying affidavit.
[18]
I am satisfied with the explanation and
considered in the interest of justice that the late filing of the
replying affidavit be
condoned and condonation is granted
accordingly.
Legal principles:
[19]
It is trite that the requirements for a
finding of contempt of court are the following:
1.
The order by the court.
2.
Service of the order on the respondents
and/or knowledge of the order by the respondents.
3.
Non-compliance of the order by the
respondents.
See
Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at para
[42]
.
[20]
In my view it is important in the
circumstances of this application to first consider
the nature of the court order.
Not every order of court can be enforced by
committal for contempt.
The
order must be one
ad factum praestandum
before the court will enforce it in
that manner.
Orders
ad factum praestandum
are
orders to do or abstain from doing a particular act.
In
Fakie,
supra,
at
para [7] the following is stated in this regard:
"The form of
proceeding CCII invoked [contempt of court] appears to have been
received into South African law from English
law and is a most
valuable mechanism. It permits a private litigant who has obtained a
court order requiring an opponent to do
or not to do something
(ad
factum praestandum),
to approach the court again, in the event of
non compliance, for a further order declaring the non-compliant
party in contempt
of court, and imposing a sanction. The sanction
usually, though not invariably, has the object of inducing the
non-complier to
fulfil the terms of the previous order."
[21]
In
Metropolitan
Industrial Corporation v Hughes
1969 (1) SA 224
(TPD) at 227E the
principle was stated as follows:
"... because it is
well settled that a committal for contempt of court by reason of a
failure to comply with an order of court
is proper only when that
order was
ad factum praestandum."
Consideration
of the merits of the application:
[22]
The
interim
order in this matter was issued against
the first to third applicants.
In
terms thereof it is the first to third applicants who were
interdicted and restrained from certain conduct.
[23]
The effect of the discharge order is
consequently
that
the first to third applicants are no longer interdicted and
restrained as provided in the
interim
order.
The
result of the discharge order is therefore that the first to third
applicants may now (again) perform the actions which were
previously
prohibited by the
interim
order.
[24]
The fact that the
interim
order was discharged, in my view, did
not and does not place any obligation on the first to third
respondents to perform any actions
and/or to refrain from performing
certain actions and/or to conduct themselves in a certain manner.
The fact that the three applicants may now
(again) perform the actions which were previously prohibited by the
interim
order
does not have the corresponding result that the first to third
respondents are now prohibited to perform the type of actions
described in paragraphs 2 and 3 of the
interim
order.
[25]
The wording of the
interim
order did not grant any rights or
relief to the first to third respondents which they now have to undo
or may no longer do as a
result of the discharge order.
[26]
In my view it is extremely important to pay
attention to the wording of the
interim
order.
It
is the applicants' case in the founding affidavit and in the replying
affidavit that they, and especially the first applicant,
inter
alia,
lost control over the business
entities and the marital home which she occupied with her deceased
husband.
However,
the
interim
order
did not grant the first to third respondents the right or the
entitlement to take control of the business entities or to live
in
the marital home, with the first to third applicants having been
"evicted" from the said properties by means of the
interim
order.
Had
that been so, the discharge order would have had the effect that the
first to third respondents would be compelled to move out
of the
respective properties and to restore the first to third applicants
control and possession thereof.
However,
in terms of the wording of the
interim
order it did not grant any rights or
relief to the first to third respondents
which they now have to undo or no longer do
as a result of the discharge order.
[27]
The discharge order, consequently, does not
constitute an order
ad factum
praestandum.
It
does not place any obligation to do something or not to do something
on the first to third respondents.
[28]
The first to third respondents can
consequently not be considered to be in contempt of court.
[29]
The application consequently
stands to be dismissed.
Costs:
[30]
This application first served before me on
28 July 2022 in order to be heard concurrently with the return date
of the urgent application
which the first to third applicants
instituted under case number 2039/2022, which was also referred to in
the applicants' replying
affidavit.
[31]
On 28 July 2022 I dealt with the interdict
application under application number 2039/2022, but for reasons which
will become evident
I had to postpone the present application to 20
October 2022.
In
addition to the postponement, I made the following order:
"2. The
respondents are ordered to file their heads of argument in accordance
with the rules of practice.
3.
The wasted costs of today occasioned
by the postponement stand over for adjudication simultaneously with
the hearing of the application.
4.
For purposes of the determination of
the reserved costs, leave is granted to the applicants
and the first to third respondents
to file an affidavit in respect of the
relevant background events which led to today's postponement of the
application, should they
wish to do so."
[32]
Mr DH Murray of Lovius Block Attorneys, the
first to third applicants' attorney of record, filed an affidavit,
dated 5 October 2022,
in
response to my aforesaid order.
In
the said affidavit he set out the history of the two applications,
the facts of which are also evident from the two court files
and some
of which facts are already
to
my
knowledge
due
to
my
handling
of both
the
applications.
I
will now deal with the relevant facts.
[33]
The present contempt of court application
was launched on 2 March 2022 and was opposed by the first to third
respondents on 4 March
2022.
They
filed their answering affidavits on 11 March 2022 and the applicants
filed their replying affidavit, together with a condonation
application, on 13 May 2022.
[34]
In the meantime, on 4 May 2022, the
applicants filed an urgent interdictory application against,
inter
alia,
the first to third respondents,
under application number 2039/2022.
A
rule
nisi
was
issued by Chesiwe, J with return date 2 June 2022.
On 2 June 2022 the first to third
respondents appeared in person in the unopposed motion court and I
extended the rule
nisi
until
28 July 2022 to the opposed roll, with specific dates for the filing
of the answering affidavits and the further papers in
the said
application. I ordered the wasted costs of the day to stand over for
later adjudication.
[35]
In the said interdict application,
application number 2039/2022, Mpakathi Inc Attorneys formally came on
record as the first to
third respondents' attorney of record, on 31
May 2022. However, as indicated above, Mpakathi Attorneys did not
appear on behalf
of the first to third respondents on the return date
of the rule
nisi
in
2039/2022 on 2 June 2022, but instead sent the respondents
in person to request a postponement.
[36]
On 28 July 2022 the interdict application
in application number 2039/2022 was indeed argued before me.
[37]
The said affidavit of Mr Murray set out the
following relevant facts with regard to the background events which
led to the postponement
of
the present application on 28 July 2022:
"17.
On
the 11th of May 2022, we received a letter from Mpakati Inc
("Mpakati"), the respondents' current attorneys of record,
which was addressed to the respondents' erstwhile attorneys of record
- Mjobi & Associates.
18
In
such letter which is annexed hereto as annexure 'C', Mpakati informed
Mjobi Attorneys that their mandate had been terminated
and that their
(Mjobi & Associates) offices had been appointed 'to act on behalf
her (respondent's) family'. The letter does
not make any mention to
either of the applications, and I accepted same to mean that they
were going to come on record in respect
of both matters. [I accept
that Mr Murray meant to say in this paragraph that Mpakati Inc
offices had been appointed at that stage
and not Majobi &
Associates].
19.
Already
at this stage of proceedings, the respondents in their personal
capacities, as well as their erstwhile attorneys of record,
were
fully of both the contempt of court application as well as the
interim
interdict order against them, as Majobi Attorneys were
in receipt of both applications and they drafted opposing papers on
the contempt
application.
20.
After
receiving the letter dated 11 May 2022 and on the 12th of May 2022, I
wrote an e-mail to the respondents' new attorneys of
record (Mpakati)
wherein I requested that they formally come on record.
21.
I
furthermore requested dates as to when their counsel would be
available to argue the content of court application and suggested
the
dates of 9 or 23 June 2022. A copy of such e-mail is annexed hereto
as annexure 'D'.
22.
On
30 May 2022, Mpakati Inc e-mailed us an unsigned copy of their
appointment as attorneys of record in respect of the interdict
matter
and requested that we provide them with copies of both the interdict
application as well as the contempt of court application.
A copy of
such e-mail is annexed hereto as annexure 'E'.
23.
On
the very same day, I replied to Mpakati Inc with a copy of the
interdict papers and once again requested if their offices were
available to argue the contempt of court application on the 23rd of
June 2022. A copy such e-mail is annexed hereto as annexure
'F'.
24.
After
discussing the date of 23 June 2022 with my counsel, I was reminded
that such date fell within the recess period and would
thus not be
suitable. I then decided that the matter should be set down on the
opposed motion court day of the 28th of July 2022.
25.
On
the 2nd of June 2022 and as stated above, the respondents, despite
having attorneys on record, appeared in person to have the
interdict
application postponed. The matter was then postponed to 28th of July
2022.
26.
On
the very same day, I once again e-mailed Mpakati Inc informing them
of our intention to place the contempt of court application
on the
same day as the interdict application, to wit 28 July 2022, and once
again requested that they formally come on record,
failing which the
notice of set down would be served via sheriff on the respondents
themselves. A copy of such e-mail is annexed
hereto as annexure 'H'.
27.
I
also proceeded to, upon their request, sent the entire contempt
application to them in 4 (four) separate e-mails, copies of which
are
annexed hereto as annexure 'I'. I submit that by requesting such
documents, Mpakati Inc was already creating an impression
that they
were going to be the firm handling such application on behalf of the
respondents, alternatively already had an instruction
to act on
behalf of the respondents in respect of the contempt application as
well.
28.
Due
to the fact that Mpakati Inc had still not come on record with
regards to the contempt of court application, such notice of
set down
was served per hand on the erstwhile attorneys of record to wit,
Mjobi & Associates, c/o Maroka Attorneys, and Mjobi
&
Associates, c/o Hattingh Attorneys on the 27th of June 2022. The
sheriff also personally served the set down on the respondents
on the
11th of July 2022 as per annexures 'J1' - 'J3'.
29.
Shortly
after receiving the set down and on the 29th of June 2022, Maroka
Attorneys withdrew as attorney of record.
30.
On
6 July 2022, Mpakati Inc sent us a letter requesting an indulgence
for the late filing of the opposing papers in the interdict
application. I responded to them and requested that they also confirm
their appointment for the contempt of court application.
They
confirmed on the very same day that they are on record for the
contempt of court application. This confirmation in fact came
directly from the firm's director, Mr Thembalani Mpakati. In this
regard I refer the court to annexures 'K1' – 'K3'.
31.
31.1
On the 14th
of July, exactly two weeks before the
mattes were to be argued, Mpakati Inc, once again directly from
Thembalani Mpakati, e-mailed
us requesting the contempt of court
application to be sent despite me personally sending same on the 2nd
of June 2022.
31.2
In such letter they stated that they
confirmed receipt of the notice of set down for the contempt of court
application and requested
such copy in order 'for our office to
prepare and brief counsel accordingly'.
31.3
We accepted that they were once
again acting in good faith and were on record for such contempt
application and my secretary, Debra
Tait duly sent such documents to
them again. A copy of such letter and our response is annexed hereto
as 'L' and 'M' respectively.
A confirmatory affidavit of Mrs Tait is
annexed hereto as 'N'.
34.
I
accepted these confirmations in good faith and proceeded to brief
counsel and prepare for the matter as if Mpakati Inc were formally
on
record, at no point did Mpakati Inc withdraw their confirmation or
that they were no longer acting in both matters.
35.
Mpakati
Inc served their heads of argument with regards to the interdict
application late on our offices on Wednesday,
27 July 2022.
I
immediately e-mailed them enquiring as to the whereabouts of their
heads of argument with regards to the contempt of court application.
A copy of such email is annexed hereto as annexure 'P'. Mpakati Inc
did not respond to such e mail.
36.
On
Thursday, 28 July 2022, when we enquired from the respondents'
counsel, ... as to the whereabouts of their heads of argument
in
respect of the contempt of court application, he responded by saying
that 'he will address the respondents' position to the
court' but
would not elaborate further.
37.
It
was only when court proceedings commenced that we learnt that Mpakati
Inc were not acting on behalf of the respondents in the
contempt of
court application and were only on instruction for the interdict
application. This would however be in direct contradiction
to how
they acted when dates for the postponement of this matter were
discussed and in contradiction to the engagements preceding
the
hearing.
38.
Whilst
I can accept and acknowledge that no formal notice of appointment was
received by our offices from Mpakati Inc in respect
of the contempt
of court application they, on no fewer as four different occasions
either outright confirmed that they were on
record via e-mail,
alternatively implied same by requesting such papers. At no point did
they withdraw such averment that they
were acting and on record for
both matters.
39.
When
court proceedings commenced, counsel for the respondents informed the
court, and by virtue thereof, ourselves, that they only
had financial
instruction to act on behalf of the respondents in the interdict
matter and held no instructions for the contempt
matter. They also
denied ever coming on record in the contempt of court application.
40.
Furthermore,
when it became clear that the court was going to postpone the matter,
Mpakati Inc were heavily involved in the discussions
and allocations
of the new date, being 20 October 2022, in respect of the content
application, although they all along maintained
they had no
instruction in this regard. I submit that their conduct in discussing
a new date was in direct contravention of them
not being on record as
alleged.
38.
I
submit that as attorneys, and more importantly, officers of the
Court, it is our duty to act with the utmost integrity, honesty
and
good faith towards colleagues.
39.
Mpakati
Inc, and more importantly its director, Thembalani Mpakati, grossly
misrepresented themselves to our offices in that they
acknowledged
and confirmed that they were on record for the contempt of court
application. At no point prior to court proceedings
of 28 July 2022
did they advise us that they did not have financial instructions to
act on behalf of the respondents.
40.
I
submit that Mpakati Inc's conduct since coming to the fore in these
matters can be construed as nothing but ma/a
fide
and
unethical. It has not only been greatly prejudicial to my clients
whose matters were not finalised on 28 July 2022 as was envisaged,
but also in that they now must suffer further costs occasioned by the
postponement of the contempt application. Further, I submit
that
their, Mpakati Inc's own clint, have been prejudiced by their conduct
as they will have to carry costs of a further appearance.
41.
both
applications could have been disposed on the same day.
42.
I
furthermore submit that the respondents, as lay people, could not
fully understand or comprehend the actions of their attorneys
together with the cost implications of having this matter postponed
to a further date.
43.
44.
I
submit that Mpakati Inc, and in special reference to its director,
Thembalani Mpakati, have acted grossly unethically, ma/a
fide
and
not in the manner befitting an officer of the court. They grossly
mislead themselves
(sic)
by stating that they were on record
for this matter when they clearly had no intention of proceeding with
same. The undeniable effect
of such conduct is that the applicants
also have to carry the costs of another court appearance to finalise
the contempt application.
Had it been known to us that Mpakati was
not instructed to deal with the contempt application, we could have
engaged further to
ascertain a date which would be suitable to argue
both matters, prior to the hearing date of 28 July 2022, to curb
costs. Resultantly,
our clients should not be saddled with the costs
of such conduct and the respondents ought to pay the costs.
45.
As
such, I submit that it will be grossly improper for the applicant to
be burdened with costs of such postponement as the applicants
did
everything in their power to ensure that the matter could proceed on
the 2ath of July 2022.
46.
I
furthermore submit that it would be grossly improper and not I the
interest of justice for the respondents to personally carry
the costs
of this postponement as I am quite certain that they were unaware of
the severe impact such postponement would have on
them financially.
47.
I
further submit that had their attorneys acted in their best
interests, it would have merely been a case of filing an extra set
of
heads of argument and arguing the matter on the same day as the
interdict application was adjudicated. Or, at the very least,
they
could have timeously informed our offices that they were, despite
informing us to the contrary, no longer acting in this matter.
This
would have, at the very least, mitigated our clients' costs.
48.
Mpakati
Inc (as well as the respondents under oath) have on numerous
occasions attested to the poor financial standing of the respondents.
I am of the view that considering the respondents admitted poor
financial status, coupled with the facts leading up to the hearing
of
this matter, to wit, Mpakati Inc unwilling to inform our offices
timeously, or at all, that they will not proceed with the contempt
of
court application, it would be grossly unfair and not in the
interests of justice for the respondents to be held liable for
these
costs s I am of the view that the blame falls squarely at the feet of
their attorneys.
49.
As
such, I humbly submit that the only just, fair and equitable cost
order under these circumstances would be a costs order, inclusive
of
the costs of this affidavit and further heads of argument, be made
de
bonis pripriis
against Mpakati Inc and its director, Thembalani
Mpakati, as they have placed the good name and standing of our
honourable profession
in jeopardy and were clearly acting ma/a
fide
in the handling of this matter as far back as May 2022.
50.
To
make matters worse, as at the time of deposing to this affidavit and
on 16 September 2022, we received a Notice of Withdrawal
as Attorneys
of Record from Mpakati Inc attorneys.
The
date of 20 October 2022 was discussed
and
agreed
to
with Mpakati
to
argue
the
contempt
application"
[38]
The aforesaid affidavit was served on the
local correspondent attorneys who, at the time, dealt with the matter
on behalf of Mpakati
Inc on 5 October 2022.
On 17 October 2022 Mr Thembelani Mpakati
sent an e-mail to the secretary of Mr Murray with a letter from Mr
Mpakati.
The
heading of the letter makes reference to the present parties and also
the present case number 4373/2021 and reads as follows:
"1.
We
refer
to
the above
matter and your founding affidavit in
respect of costs dated 5 October 2022.
2.
On
your
founding
affidavit
you
made
serious
allegation
and
accusation against our firm and our Mr T Mpakati in particular.
3.
We are
going
to
oppose
these
baseless
and
malicious
claims
against Mpakati Inc attorneys.
4.
We have noted that the affidavit
makes reference to annexures that have not been attached to it.
5.
Kindly send us the annexures so that
our office can fully respond to your affidavit.
6.
We shall await your response
herein."
[39]
The aforesaid letter was handed to me
during the postponed hearing of the application on 20 October 2022.
I was advised from the Bar by Ms Macakati
that in terms of her instructions, no further documents had been
received by Mr Murray
from Mr Mpakati.
I
have also not received any further documents from Mpakati Inc.
If any further documents had in the
meantime been filed at court, same have not been handed to me.
[40]
It is trite that subject to certain
crystalised general principles, the awarding of costs is in the
discretion of the court, which
discretion has to be exercised
judicially.
[41]
In the present matter I am considering the
possibility
of
making a costs order
de bonis propriis
against Mpakati Inc Attorneys and/or or
Mr T Mpakati with regard to the wasted costs of the·
postponement on 28 July 2022,
including the consequential costs of
the affidavit of Mr Murray which has already been filed and the costs
of further affidavits
which may be filed, if any. Although the
respective attorneys have already been granted
an opportunity
to
file an affidavit pertaining
to
the said costs as per paragraph 4 of my order of 28 July 2022, I deem
it necessary and in the interest of justice to grant the
relevant
attorneys a further opportunity to file affidavits, if they so
decide, in view of the following facts and circumstances:
1.
The affidavit of Mr Murray which was filed
at court, does not contain the annexures referred to in the
affidavit.
It is
evident from the letter of Mr Mpakati that he did not receive the
affidavits either.
Irrespective
of whether such annexures have in the meantime been provided to Mr
Mpakati, I deem it necessary to also have sight
of the said
annexures.
2.
The allegations and submissions contained
in the affidavit of Mr Murray are very serious in nature and
therefore, I deem it necessary
that Mr Mpakati be granted an
opportunity to respond thereto, should he so wish.
3.
There is a risk that Mr Mpakati may already
have filed a response to the affidavit at court, but that such
response has, due to
administrative problems, not been provided to
me.
I do not want
to risk making a costs order I circumstances where it may be that I
am not in possession of all the relevant documents
which have been
filed at court in this regard.
[42]
In order to ensure that no misfiling
takes place, I intend ordering that the filing should take place by
e-mail and that my registrar
be copied in the said process.
[43]
With regard to the other costs of the
application, excluding the wasted costs of 28 July 2022, I intend to
reseNe same until such
time as I give judgment on the costs of 28
July 2022.
I do
not deem it appropriate to consider costs on a piecemeal basis.
Order:
[44]
The following order is consequently
made:
1.
The application is dismissed.
2.
The
costs
of
the
application
are
reserved,
subject
to
the
following:
2.1
Mr D. Murray ("Mr Murray") of
Lovius Block Attorneys
is
ordered to email a copy of this order to Mr T. Mpakati ("Mr
Mpakati") of Mpakati Inc Attorneys, Pretoria on or before
Tuesday, 28 March 2023.
2.2
Mr Murray is ordered to email a copy of the
annexures referred to in the affidavit of Mr Murray, dated 5 October
2022, to Mr Mpakati
on or before Thursday, 30 March 2023.
2.3
Mr Mpakati and/or any other duly authorised
representative of Mpakati Inc Attorneys is granted leave to file an
affidavit, should
he/she so wishes, in response to the affidavit of
Mr Murray, dated 5 October 2022, which filing is to take place via
email on or
before Friday, 14 April 2023.
2.4
Mr Murray is granted leave to file an
affidavit, should he so wishes, in response to the aforesaid
affidavit of Mr Mpakati and/or
on behalf of Mpakati Inc Attorneys, if
such an affidavit is indeed filed, which filing is to take place via
email on or before
Friday, 28 April 2023.
2.4
The
aforesaid emails are also to be filed at court via email addressed to
my registrar, Mr H van Vuuren, at
hvanvuuren@judiciary.org.za.
2.5
The judgment on costs will be handed
down within 10 days after the date for filing of the affidavit in
reply, if any.
C
VAN ZYL
On
behalf of the applicants: Adv.
I. Macakati
Instructed
by
:
Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
–
3
rd
respondents: No
appearance