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[2023] ZAECMKHC 121
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Department of Human Settlements, Eastern Cape Province and Another v Diutwileng (3486/2022) [2023] ZAECMKHC 121 (31 October 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 3486/2022
In
the matter between:
THE
DEPARTMENT OF HUMAN
SETTLEMENTS,
EASTERN CAPE
PROVINCE
FIRST
APPLICANT
THE
HEAD OF DEPARTMENT
AND
ACCOUNTING OFFICER OF
THE
DEPARTMENT OF HUMAN
SETTLEMENTS,
EASTERN CAPE
PROVINCE
SECOND
APPLICANT
and
OUMA
GAEHUMELWE DIUTWILENG
RESPONDENT
JUDGMENT
Rugunanan
J
[1]
The respondent was formerly employed by the
applicant as its chief financial officer. During or about 2021 she
was suspended from
her employment due to allegations of misconduct.
The suspension notice to her directed her to forthwith return to the
applicant
a laptop allocated to her for the discharge of her
duties. The laptop in question is an HP Convertible X360 with serial
number 5CD[...] and barcode number RSA6[...] (the laptop).
[2]
On 21 October 2021 and in proceedings
instituted in this Court under case number 3261/2021, Roberson J
granted a rule nisi in favour
of the applicants. The rule directed
the respondent to show cause why she should not return the laptop to
the applicants. Pending
the return day,
inter
alia
, the sheriff was to take
possession of the laptop and, in the event of it no longer being in
the respondent’s possession,
the respondent was directed to
inform the sheriff of the whereabouts of the laptop.
[3]
The respondent did not return the laptop.
[4]
Contending that it was among items stolen
from her home during a housebreaking that occurred on 25 April 2021,
the respondent’s
attempt to discharge the rule nisi met with no
success.
[5]
The rule was confirmed by order of Malusi J
on 3 February 2022.
[6]
In a notice of motion issued on 3 October
2022 in case number 3486/2022 the applicants approach this Court
seeking an order essentially
in the following terms:
(a)
That the respondent be declared to be in contempt of this court’s
orders dated 21 October
2021 and 3 February 2022.
(b)
That in the event the respondent returns the laptop within two weeks
of any order granted by
this court, she is to be sentenced to a
period of imprisonment to be determined by this court – which
sentence shall be suspended.
(c)
That in the event that the respondent does not return the laptop
within the aforesaid period,
she is to be sentenced to a period of
imprisonment to be determined by this court without any suspension of
the operation of such
order.
(d)
That the respondent be directed to pay the costs of the application.
(e)
Further and/or alternative relief as may be deemed fit.
[7]
Following confirmation of the rule nisi,
and in a subsequently handed down judgment, Malusi J made several
findings against the
respondent. These are recapped only to the
extent considered relevant for present purposes.
[8]
Referring to the judgment and picking up
from the suspension notice directing the respondent to forthwith
return the laptop the
following succinct extracts articulated by the
learned judge are quoted:
[9]
They read:
‘
[4]
Six (6) days later the respondent informed the applicants by email
that the laptop had been stolen
three (3) days after the suspension
letter was dispatched to her.
[5]
The applicants’ attorneys commissioned a digital forensic
investigation as part of
the disciplinary proceedings against the
respondent. The forensic expert was instructed to locate the laptop
in the course of the
investigation. He filed an affidavit at the
conclusion of his investigation.
[6]
The forensic expert asserted in his affidavit that the laptop was
utilised three (3) months
after it had been reported stolen within a
150 metres radius that included the respondent’s residence.
When so utilised it
was connected to a wi-fi network whose
identifying name was ‘
duitwileng home wi-fi’
. The
expert expressed the opinion that the laptop had probably been
located at the respondent’s residence when so utilised.
He drew
the conclusion that the respondent had retained the laptop and
continued using it after the alleged theft.
[7]
In her answering affidavit the respondent averred that the laptop was
stolen from her home
three (3) days after she had been suspended. She
gave details of the alleged theft which occurred in her absence. She
stated that
at the time the application was launched she was no
longer in possession of the laptop.
…
[10]
The issue for decision [is] whether the respondent was in possession
of the laptop at the time it was
demanded.
[10]
Applying the established legal principles
for resolving disputes of fact on affidavit, Malusi J rejected the
respondent’s
version. and in doing so he found that:
‘
[13]
The respondent has not provided any reason whatsoever why she failed
to return the laptop when lawfully instructed
to do so in her
suspension letter. The lack of explanation lends credence to the
contention by the applicants’ counsel that
the respondent
decided to retain the laptop in an effort to frustrate the
investigation against her.
[14]
The applicant has presented compelling and persuasive evidence from a
forensic expert that the laptop
was used in the vicinity of the
respondent’s private home and accessing her home wi-fi well
after the purported theft. She
has not explained how the fictitious
thief would be able to access her home wi-fi when using the laptop in
the vicinity of her
home. The respondent’s version was rendered
more implausible by the applicants’ uncontested evidence that
passwords
are used to gain access to its electronic
devices/equipment. It beggars belief that the fictitious thief would
have known the applicants’
password to be able to use the
laptop.
[15
It [is] my strong view that the respondent had not dealt at all with
the evidence which
disproved her allegation of a permanent loss of
the laptop. The court was bound to accept the applicants’
evidence that the
respondent was in possession of the laptop after
the date of the alleged theft. Since there had not been any further
alleged theft,
it stands to reason that she was in possession of the
laptop when the application was launched.’
[11]
No
appeal lies against the judgment and for that reason the approach
adopted by this Court is that the findings by the learned judge
are
presumed to be correct. In argument this much was conceded by
respondent’s counsel. In distancing herself from the judgment
and laying emphasis rather on the applicants’ founding
affidavit, the respondent argued that the affidavit does not identify
the nature and parameters of their case. The argument misconceives
the approach adopted which accords with the settled precept
that an
order of a court of law stands until set aside by a court of
competent jurisdiction
[1]
. This
is consistent with the Constitutional injunction that an order or
decision by a court binds all persons to whom it applies
[2]
.
The requisites for
contempt
[12]
The
judgment in
Fakie
NO v CII Systems (Pty) Ltd
[3]
sets out the law on contempt of court committed by a person who
disobeys a court order and is referenced more extensively herein.
The
authoritative statements dealing with the nature of the offence and
the consequences of invoking application proceedings to
obtain an
order declaring a respondent to be in contempt of court and the
imposition of a sanction are summarised below.
[13]
Contempt
of court ‘
is
a crime unlawfully and intentionally to disobey a court order.’
[4]
A litigant who has obtained
a court order that requires an opponent to do or refrain from doing
something (
ad
factum praestandum
)
is permitted, where there is non-compliance with the order, to
approach the court for a further order declaring the party in default
to be in contempt of court and to have a sanction imposed against
them.
[5]
[14]
The
yardstick for determining whether disobedience of a civil order
constitutes contempt is ‘
whether
the breach was committed deliberately and mala fide’
.
A deliberate disregard on its own is not sufficient since the
defaulter may genuinely, although mistakenly, believe themselves
entitled to act in the way they did to constitute the contempt.
Acting in good faith avoids the infraction even if the conduct
is
objectively unreasonable (though unreasonableness could, depending on
the circumstances, evidence a lack of good faith).
[6]
[15]
In
motion proceedings an application for committal for contempt that is
brought at the instance of a party is a civil proceeding
intended to
invoke a criminal sanction or threat of that sanction against a
respondent.
[7]
Although in
motion proceedings a respondent is not strictly regarded as an
accused person, the respondent is entitled to analogous
protections,
suitably adapted to the constitutional imperative that a person’s
freedom and security must be protected.
[8]
Accordingly, an applicant that seeks a sanction of committal must
prove the requisites of contempt (i.e. (i) the order; (ii) service
or
notice; and (iii) wilfulness and
mala
fides
)
beyond reasonable doubt. (Parenthetically, I add that the standard of
proof on a balance of probabilities only applies if a declarator
or
other civil remedies short of committal are sought (see
Fakie
[9]
and
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
.
[10]
)).
[16]
Once
an applicant has proven the order, service or notice, and wilfulness
and
mala
fides
,
the respondent bears an evidential burden in relation to wilfulness
and
mala
fides
.
This only requires of the respondent to adduce evidence that
establishes a reasonable doubt that non-compliance was wilful and
mala
fide
,
failing which contempt will have been established beyond reasonable
doubt.
[11]
[17]
Before addressing the question whether
contempt has been established with reference to the test laid down in
Fakie
it
is useful to highlight the version advanced by the respondent in
opposing these proceedings. Essentially, it is the same as
that
advanced by her in the main application that served before Malusi J.
[18]
In summary, she avers that the laptop was
stolen on 25 April 2021 during a housebreaking at her home. Her
domestic worker deposed
to an affidavit for the police and indicated
that three laptops were stolen, among them the laptop in question.
The police investigation
docket as also the report from the
neighbourhood security company details the stolen property
inter
alia
the laptop.
[19]
It is considered prudent to underscore
certain principles relevant to the manner in which courts approach
disputes of fact in motion
proceedings insofar as they relate to the
presentation of the respondent’s case.
[20]
Generally,
any dispute of fact must be decided on the respondent’s version
in terms of the well-known
Plascon-Evans
approach.
[12]
Where that
version, however, is so far-fetched, clearly untenable or palpably
implausible as to warrant its rejection merely on
the papers, the
version of the respondent will not prevail.
[13]
It is also required of a respondent who seeks to have its version
accepted that it deals with facts in the applicant’s founding
papers seriously and unambiguously, failing which the respondent’s
version must be rejected.
[14]
It is apparent – as was the case in the main application –
that the respondent has persisted in her failure to deal
seriously
and unambiguously with the facts advanced by the applicants.
[21]
Having considered the evidence before him
in the main application Malusi J was driven to ‘the ineluctable
conclusion’
that the respondent’s version of the laptop
having been stolen was false.
[22]
As was correctly contended by the
applicants, in determining whether contempt beyond a reasonable doubt
has been established it
is the abovementioned considerations that
should be borne in mind by this Court when applying the accepted test
in motion proceedings.
[23]
In what follows hereafter the respondent’s
version, on the appropriate test, does not prevail.
[24]
That said, and against the above
background, I turn to consider the merits of the application having
regard to the requisites laid
down in
Fakie
.
The order and service
[25]
The rule nisi was served on the respondent
on 10 February 2022 together with an unsigned copy of the final order
of 3 February 2022.
On 24 May 2022 service of the final order duly
signed by the registrar was effected. It is not in dispute that
personal service
was effected on the respondent on both occasions.
The respondent, however, attempts to suggest that notwithstanding
service on
24 May 2022 she did not have full knowledge of the
confirmation of the rule nisi – and although not advancing
a
clear reason, it appears that she queried the authenticity of the
order with the registrar on 27 May 2022. This was due to the fact
that she was previously served with an unsigned order and queried it
with the registrar on 15 February 2022. The respondent’s
complaints about service of an unsigned order on a prior occasion do
not assist her at all. That she was served with a signed order
on 24
May 2022 is not disputed. Her protestations were correctly condemned
by the applicants as opportunistic and makeweight.
[26]
In the period 27 May 2022 until the
launching of this application on 3 October 2022, it is
significant that the respondent
did not react to the court order
other than directing enquiries at the registrar variously on 11
October, 13 October and 18 October
2022 for the purpose of retrieving
the court file and obtaining copies of the court papers (presumably
of the main application).
As at the date of signature of her opposing
affidavit the respondent complains that the court file had not been
retrieved ‘and
there is no clarity in regard to the order or
judgment’.
[27]
What
clearly emerges from the timeframe sketched by the above is that as
at 24 May 2022 the respondent had knowledge of the final
order and
that in the period that followed she remained entirely supine in the
face thereof.
[15]
Non-compliance
[28]
It is manifestly patent on the respondent’s
own version that the laptop has not been returned to the first
applicant. Her
version that it was stolen was rejected in the main
application as false and gains no traction in these proceedings.
[29]
For reasons to follow her defence of
impossibility fails.
Wilfulness and
mala
fides
[30]
Where
the applicants have proven the order, service and non-compliance, the
respondent bears the evidential burden in relation to
wilfulness and
mala
fides
.
[16]
[31]
It was correctly submitted by the
applicants, that the respondent has not discharged this evidential
burden for the following reasons.
[32]
Following service of the final order (as
well as the rule nisi), the applicants’ attorneys directed a
letter to the respondent
on 10 June 2022 admonishing her to comply
with the court orders. The letter at the same time invited her to
contact their offices
should she have any queries. Despite having
received the letter, which is not disputed, both the terms of the
court order and the
invitation to make contact were inexplicably
ignored by her. It is telling that:
(a)
She did not appeal the final order nor did she approach the Court for
any form of directions despite
the circumstances (impossibility due
to theft) supposedly confronting her;
(b)
She did not seek to engage the applicants or their attorneys with her
alleged concerns or difficulties
supposedly confronting her;
(c)
She did not engage with her own legal representatives to address the
applicants about her alleged difficulties
in a meaningful manner;
(d)
She did not make the slightest suggestion that the findings by Malusi
J were erroneous or perhaps tainted
by misdirection; and
(e)
Save for the few desultory or random enquiries made with registrar
without any form of satisfactory
response, the respondent has
remained entirely supine in the face of the two court orders.
[33]
The respondent’s conduct –
manifest of a deliberate disregard of the terms of the court order/s
– must be evaluated
in the light of what Malusi J found to be
the ‘compelling and persuasive evidence from a forensic expert’
that the
laptop was utilised, while employing the respondent’s
home wifi and accessing it with a password in the vicinity of her
residence
after the theft had allegedly taken place.
[34]
It bears mentioning that the respondent did
not, neither in the main application, nor in the present application,
seek to rebut,
by way of contrary expert evidence, the compelling and
persuasive evidence from the applicants’ own expert. In
argument no
explanation was put up for this omission on her part.
[35]
Furthermore the respondent has not, either
in these proceedings or in the main application, presented an
affidavit from her domestic
helper (who was apparently at the scene
immediately after the housebreaking) confirming that the affidavit
presented to the police
and allegedly deposed to by the domestic
helper was indeed the latter’s affidavit and that the facts
contained therein are
true and correct. Yet again, no explanation is
tendered for this further omission on the part of the respondent.
[36]
Commenting on the video footage, presented
for the first time by the respondent as evidence of the alleged
housebreaking, the applicants
maintain that the evidence is simply
meaningless. It is not supported by any confirmatory affidavits from
neighbours whose CCTV
allegedly recorded the incident – and yet
again, no explanation for this further omission is tendered by the
respondent.
As was submitted by the applicants the video footage does
nothing to discharge the evidentiary burden resting on the
respondent.
[37]
To sum up, the respondent has manifestly
failed in all the circumstances to deal with the facts presented by
the applicants ‘seriously
and unambiguously’, as was
required of her. To quote the submission in the applicant’s
heads of argument:
‘
Her
version that the laptop was stolen has already been roundly rejected
by this Honourable Court, and correctly so, because it
is so clearly
untenable. Nothing has been presented by the respondent to disturb
that finding. It follows that she has not discharged
her evidentiary
burden to establish a reasonable doubt as to whether non-compliance
with the court orders was wilful and
mala
fide
.
[38]
Unreservedly, I am in agreement therewith.
[39]
In the circumstances, the respondent having
failed to discharge the evidentiary burden, her contempt has been
established beyond
a reasonable doubt.
[40]
I deem it appropriate to make the following
order:
1.
It is declared that the respondent
Ouma
Gaehumelwe Diutlwileng
also known as
Gaehumelwe Elizabeth Diutlwileng
is guilty of the crime of contempt of court for failure to comply
with the orders of this Court dated 21 October 2021 as read with
the
order dated 3 February 2022 issued under Case Number 3261/2021.
2.
In the event that the respondent returns to
the applicants the laptop with particulars detailed in the court
order of 21 October
2021 within 10 (ten) days of the date hereof, the
respondent is sentenced to a period of imprisonment of 4 (four)
months which
sentence is suspended for 3 (three) years on condition
that she is not again found guilty of contempt of court in the form
of non-compliance
with an order of court which is committed during
the period of suspension.
3.
In the event that the respondent fails to
return the laptop to the applicants within the period mentioned in
paragraph 2 of this
order, the respondent is committed to
imprisonment for contempt of court and sentenced to undergo 9 (nine)
months’ imprisonment.
4.
The respondent is further ordered to pay
the costs of this application.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicants:
S
C Rorke SC
, Instructed by Wesley Pretorius & Associates
Inc., c/o Netteltons Attorneys, Makhanda (Ref:
I Pienaar
).
For
the Respondent:
M
Somandi
, Instructed by Wheeldon Rushmere & Cole Inc.,
Makhanda (Ref:
B Brody
)
Date
heard:
3
August 2023
Date
delivered:
31
October 2023
[1]
Bezuidenhout
v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
(E) at 229B-C;
Jacobs
v Baumann NO
2009 (5) SA 432
(SCA) at 439G-H.
[2]
Section 165 (5) of the Constitution of the Republic of South Africa,
1996.
[3]
Fakie
NO v CII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
paras 6, 24 and 25.
[4]
Fakie
id at
332A
[5]
Fakie
ibid
at 332D
[6]
Fakie
id at 333B-C.
[7]
Fakie
ibid at 333A.
[8]
Fakie
id at
344A; and see generally
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018 (1) SA 1
(CC) at 23D.
[9]
At 345A.
[10]
2018 (1) SA 1
(CC) para 64.
[11]
Fakie
ibid para 23.
[12]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C.
[13]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290D-F.
[14]
Wightman
t/a JW Construction Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[15]
Compare these facts with those in
Matjhabeng
where the respondent faced with impossibility nonetheless acted
proactively.
[16]
Fakie
ibid para 42.