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[2022] ZAECGHC 25
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Dr Beyers Naude Local Municipality v Hero Telecoms (PTY) Limited and Others (623/2022) [2022] ZAECGHC 25 (22 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
GRAHAMSTOWN
CASE NO. 623/2022
DR
BEYERS NAUDE LOCAL
MUNICIPALITY
Applicant
and
HERO TELECOMS (PTY)
LIMITED
First Respondent
(registration number
2013/014376/07)
HELMUT GREWAR
NEL
Second Respondent
BASIE
COETZEE
Third Respondent
LUCIAN
HARRIS
Fourth Respondent
MR DE WET
FOURIE
Fifth Respondent
SMIT SEWGOOLAM
INCORPORATED
Sixth Respondent
JUDGMENT
NQUMSE AJ:
Introduction
[1]
This is an application wherein an order is
sought in the following terms:
1.1.
That the applicant’s non-compliance
with the rules of this court relating to time limits, forms and
service be condoned and
leave be granted to the applicant to move
this application as a matter of urgency in terms of the provisions of
Rule 6 (12);
1.2.
That a
rule
nisi
be issued calling upon the first
to sixth respondents and/or any other interested party to just show
cause, if any, on Thursday
the 21
st
day of July 2022 at 09h30 or so soon thereafter as the matter may be
heard why a final Order should not be granted in the following
terms:
1.2.1.
That the first to fifth respondents be
found to be in contempt of the Order of the Honourable Justice Bloem
under case number 303/2022
dated 22 February 2022;
1.2.2.
That the first respondent be ordered to pay
a fine in an amount to be determined by this Honourable Court;
1.2.3.
That the second to fifth respondents be
committed to prison for a period to be decided by this Honourable
Court and that warrants
for the arrest of the second to fifth
respondents be issued;
1.2.4.
That the warrants in paragraph 1.3 be
stayed pending the return date on Thursday the 21
st
day of July 2022;
1.2.5.
That the South African Police Service be
authorised to assist with the execution of the Order of the
Honourable Justice Bloem under
case number 303/2022 dated 22 February
2022;
1.2.6.
That the first to fifth respondents be
ordered to pay costs of this application, jointly and severally, the
one paying the other
to be absolved, on an attorney-own client scale;
1.2.7.
That the sixth respondent be ordered to pay
costs of this application,
de bonis
propriis
, jointly and severally, with
the first to fifth respondents, the one paying the other to be
absolved, on an attorney-own client
scale;
1.2.8.
That pending the return date of the
rule
nisi
that the respondents and/or any
other person under the respondents’ direction be directed to
comply in all respects with
the Order of the Honourable Justice Bloem
under case number 303/2022 dated 22 February 2022, and with immediate
effect cease and
desist from undertaking any trenching, excavation
and/or construction works related to fibre and/or telecommunications
cabling
within the jurisdictional area of Graaff-Reinet;
1.2.9.
That the first and/or sixth respondents be
directed to provide, within 24 hours of the Order being granted, the
physical residential
address, current whereabouts (should they not be
present at their residential address), email addresses and cellular
phone numbers
of the second to fifth respondents;
1.2.10.
That the applicant be directed to serve a
copy of the application and such Order as this Court may grant, upon
the second to fifth
respondents;
1.2.11.
That in the event that the Sheriff is
prevented and/or unable to effect personal service of this Order
and/or any other legal processes
in these proceedings upon the second
to fifth respondents, that the Sheriff be and is hereby authorised to
effect service upon
the second to fifth respondents via email and/or
via sms message/whatsapp to their cellular phone numbers that such
service be
accepted as valid service form particular, contempt of
court proceedings;
1.2.12.
That the sixth respondent be directed to
file an affidavit, within 15 (fifteen) days subsequent to the issue
of the rule nisi explaining
the contents of its letter dated 25
February 2022 and to specifically address:
1.2.12.1.
The advices pertaining to section 18 of the
Superior Court Act 10 of 2013 (the “Act”) and why its
failed to refer to
section 18 (2) and 18 (3) of the Act;
1.2.12.2.
Why costs
de
bonis propriis
, on an attorney own
client scale, should not be ordered against the firm;
1.2.13.
That costs of the application be reserved
and determined on the return date of the
rule
nisi
;
1.2.14.
Further and/or alternative relief.
1.2.15.
For ease of reference, any reference to the
applicant shall also be reference to Beyers Naude Local Municipality
as the ‘Municipality’
and any reference to the
respondents shall also be a reference to Hero Telecoms (Pty) Limited
as ‘Herotel’.
[2]
The factual background as well as the
common cause facts, leading up to the launching of this application
are briefly the following.
[3]
On Tuesday, 22 February 2022, pursuant an
interdictory relief that was sought by the applicants against the
respondent and which
was argued before Bloem J, he granted a
rule
nisi
in a comprehensive judgment (the
Order) and issued the following interdict “
That
the first respondent and/or any other person under the first
respondent’s direction or authority terminate their offending
conduct set out in paragraph 1 above and desist from undertaking any
trenching, excavation and construction of an electronic communication
network within the jurisdictional area of Graaff-Reinet
”.
On the same day mentioned above the order was served on the first to
sixth respondents.
[4]
Notwithstanding the order the first
respondent continued with its operations of digging trenches,
excavation work and the construction
of an electronic communication
network in the area of the applicant.
[5]
On 25 February 2022, Herotel delivered an
application for leave to appeal the whole of the judgment and order
handed down by Bloem
J. After delivery of its application to appeal,
Herotel continued its operations without any hindrance. On 26
February 2022 Mr
Benjamin Arends, a director of infrastructure
services in the employ of the applicant, accompanied by members of
the South African
Police Service attempted to stop Herotel by
approaching its employees who were engaged in trenching activities
and construction
of the electronic network to stop their activities
and they refused.
[6]
The failure by Herotel to stop its
activities caused the applicant to launch this application for
contempt of court. It appears
that Herotel or its employees would not
be deterred even by the launching of this application because when
the application was
served on Mr Kobus Breedt, a manager of Herotel
in Graaff-Reinet, his response was that he does not believe that this
application
nor the order of 22 February 2022 which was attached to
the application had the effect of stopping them from proceeding with
their
activities, and as such they will continue until the court
date.
[7]
In its founding affidavit the applicant
further alleged that the continued work by Herotel is posing a threat
to the public as the
first respondent is digging trenches on
pavements and where they have previously dug up the pavements or road
they have not restored
it to its original condition resulting in the
surface being uneven and bumpy. As a result of the unsafe conditions
the applicant
is at risk of civil claims launched against it.
[8]
Applicant contends that the order by Bloem
J is interlocutory to which section 18 (2) of the Superior Court Act
10 of 2013 (the
Act) applies in a case where a party seeks to appeal
an order for interim relief. In doing so a party has to act in
accordance
with section 18 (3) of the Act, and neither has Herotel in
launching its appeal made out a case to suspend the order as
envisaged
in section 18 (3).
[9]
In addition to the harm the applicant seeks
to prevent, of digging up trenches on its streets without the
wayleave permit in terms
of the municipality by laws, the applicant
continues to suffer prejudice. The applicant further contends that if
Herotel is allowed
to continue with its activities the more difficult
it becomes to reverse the damage caused and as such, the aim of
Herotel is to
complete its work so as to be able to present the court
with a
fait accompli
.
It is on those bases that the applicant contends that its application
is urgent.
[10]
Both the affidavits of Selwin Jantjies and
Benjamin Arends confirms the averments made by Martin Rankwana the
deponent in the founding
affidavit.
[11]
In its answering affidavit Herotel contends
that barring the applicant complying with the provisions of section
18 of the Act, which
relief it has not sought nor addressed in its
founding papers, this court is not in a position to make any
pronouncements on the
efficacy and/or enforcement of the order
granted on 22 February 2022.
[12]
The main thrust of its opposition stems
from paragraph 50 of the applicant’s founding affidavit which
states “
so it is common knowledge
that several companies in South Africa compete for installation of
fibre-optic networks, as the company
which lays the cables is the
company which can subsequently provide and charge for the fibre-optic
network service. This has created
a frenzy by fibre-optic network
service providers to be the first to lay down the infrastructure, the
natural being to present
the local authority with a
fait
accompli
, as it were
”.
Herotel interprets the above statement as confirmation that a number
of operators are competing against each other within
the municipal
area of the applicant in a race to be first to install and implement
infrastructure in terms of the Electronic Communications
Act, 36 of
2005 (‘
the ECA
”).
It further contended that any delay occasioned to any of the
individual competitors in the implementation of their infrastructure
within the municipal area of the municipality would inevitably
prejudice the relevant competitor and put it at a disadvantage to
the
other operators. That delay would result in a position where the
delayed competitor can no longer compete for the presentation
of
infrastructure to the municipality as it would have been overtaken by
its rivals.
[13]
In support of its contention Herotel
referred to Openserve as a direct competitor who was permitted and
authorised by the municipality
to continue with its trenching,
digging and excavation. It further referred to its answering
affidavit in the main application
where in paragraph 174 it made the
following allegation. “
should an
interim interdict be granted against Herotel, Herotel will be finally
affected in its commercial business operations as
a result of the
interdict in that competitors such as Openserve, will gain advantage
as a result of the interdict in that they
will be allowed to continue
with installations of their services and Herotel would be stopped
from competing with Openserve. The
result would be inappropriate and
unlawful having regard to the fact that, like Openserve, Herotel is a
natural licensee and should
be allowed to compete on equal terms with
other licensees
”.
[14]
They further contend that it was common
ground before Bloem J, that any interlocutory relief granted against
Herotel would be final
in substance. According to Herotel its
application for leave to appeal against the Order of 22 February 2022
suspends its operation
and execution in terms of the Act. In light
thereof so it was contended, Herotel was procedurally entitled to
continue with the
installation of the services within the municipal
area of the applicant until such time as the application for leave to
appeal
was finally determined. Therefore its conduct cannot be
considered to be deliberate and as an intentional violation of the
court’s
dignity, or authority. If the applicant is aggrieved by
the conduct of Herotel it should have instituted an application in
terms
of section 18 (3) of the Act, instead it opted to deliver a
misguided application for contempt of court.
[15]
Herotel further contends that the patent
failure by the applicant to institute an appropriate remedy in terms
of section 18 (3),
absolves Herotel’s actions from being
contemptuous or a deliberate
mala fide
disregard for the court’s order. On the contrary, so they
contend, Herotel’s actions confirm its utmost respect for
the
judgment and orders of this court. It further disputes the
truthfulness of some of the photographs that were taken by the
applicant and which have been imputed on to Herotel’s actions
whereas they depict actions of Openserve.
[16]
Herotel further holds a strong view that
the advice obtained from the sixth respondent to rely on the
provisions of section 18 in
the pursuit for its leave to appeal is
correct on both the facts and the law. It therefore applies for the
dismissal of the application
with costs on a punitive scale.
[17]
The affidavits of Mr Van Niekerk, Coetzee
Haws, and Breedt which are confirmatory affidavits to the answering
affidavit of Helmut
Nel had nothing further to add to Herotel’s
case.
[18]
In reply the applicant contends that the
interim order can never constitute a final relief. It further denies
the allegation that
there are other service providers who obtained a
wayleave permit for its area. Instead all other service providers who
were competing
with Herotel are abiding by its By Laws. The
allegations regarding other competitors is speculative and
uncorroborated. Openserve,
which is a division of Telkom is not one
of the competing service providers since it has an existing and
historical wayleave permit
to repair its network cables.
[19]
The nub of the dispute between the
applicant and Herotel is the proper interpretation of section 18 of
the Act and its application
pursuant the action by Herotel to appeal
the Order of Bloem J. Flowing therefrom are the following issues for
determination:
19.1.
The issue of the
rule
nisi
as per the notice of motion;
19.2.
A declaratory which enforces certain terms
of the Order;
19.3.
Whether the respondent’s attorney of
record (sixth respondent) should be directed to file an affidavit
explaining its conduct;
19.4.
Whether applicant has established a
prime
facie
case of contempt of court.
[20]
As a point of departure I deal with the
provisions of section 18 of the Superior Courts Act which reads:
Suspensions of
decisions pending appeal
(1)
Subject to subsections (2) and (3) and
unless the court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court
under exceptional circumstances orders otherwise, the operation and
execution of a decision
that is an interlocutory order not having the
effect of a final judgment, which is the subject of an application
for leave to appeal
or of an appeal, is not suspended pending the
decision of the application or appeal.
(3)
A court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the court to order otherwise,
in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
court does not so order and
that the other party will not suffer
irreparable harm if the court so orders.
(4)
………
..
(5)
………
..
[21]
It was submitted by Mr Potgieter for
Herotel that section 18 (1) is “a catch all” provision
framed in the broadest of
language that suspends ‘any decision’
made by the court that is a subject of an application for leave to
appeal or
of an appeal, pending the decision of such an application
for leave to appeal or appeal. Due to this reasoning, he argued that
Herotel’s reliance on section 18 (1) is not a misinterpretation
of the section but a deliberate choice. This is more the reason,
so
the argument went, if regard is had to the final effect of the Order.
Mr Potgieter further submitted that it is the party who
alleges that
the interlocutory order has no final effect who bears the onus to
bring an application in terms of section 18 (3)
for the suspension
thereof.
[22]
In
further support of the proposition that the order was final in
effect, he referred me to various authorities most notably the
comments in
BHT
Treatment (Pty) Ltd v Leslie and Another
[1]
wherein Marais J dealing with interim interlocutory proceedings
relating to the enforcement of a restraint of trade, referred to
the
matter before him as follows “Mr Labe, on behalf of the first
respondent, submitted that in circumstances it is proper
for the
court to approach the matter as if final relief is being sought. The
application is one for an interim interdict. However,
Mr
Labe, in his heads of argument, points out that, having regard to the
period of the restraint, the period which has elapsed since
the first
respondent left the employ of the applicant and the practiced time
periods involved in the court hearings, the restraint,
if ordered,
will have run out before the matter can come to trial. Therefore,
says Mr Labe, what is being granted is in effect
final relief and the
test appropriate for final relief, not the test appropriate to
interim relief should be applied.
Marais
JA continued and stated, “
In
my view, this approach is correct. The court should look at the
substance rather than at the form. The substance is that an interdict
is being sought which will run for the full unexpired time of the
restraint. In substance therefore final relief is being sought
although the form of the order is interim relief. In my view
therefore the correct approach to this matter is that set out in the
Stellenbosch Farmer’s Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235.”
According to Mr Potgieter, Herotel’s case is similar to the
matter that was before Marais JA above in that the order of Bloem
J
has the effect of violating its competing rights with Openserve, an
aspect that was overlooked and not addressed.
[23]
Mr Mullins for the applicant, on the hand
rejected the interpretation of section 18 of the Act by Herotel as
misplaced and patently
incorrect. It is, so it was argued a twisted
interpretation of the law to advance Herotel’s financial
interests a “
win at all costs
attitude
.” He further submitted
that the reliance on section 18 (1) by Herotel is to justify its
unlawful conduct of their continued
non-compliance with the Order. He
further argued that the assertion that the Order is final in effect
is untenable. He relied on
a number of authorities amongst them is
Pretoria Garrison Institutes v Danish
Variety Products (Pty) Ltd
(1948 (1) SA 839)
at section 70,
where the following is stated “
A
preparatory or procedural order is a simple interlocutory order and
therefore not appealable unless it is such as to dispose of
any issue
or any portion of the issue in the main action or suit or unless it
anticipates or prejudices some relief which would
or might, be given
at the hearing
”. He also referred
to
Reddy v Reddy
[2016] JOL 35569
(KZD) at paragraph 13, and Zweni v Minister of Law and Order
1993 (1)
SA 523
at 5321 – 533A
as
authorities that support the notion that what is meant by an order
which is interim and not having the effect of a final judgment,
the
decision must be final and not susceptible of alteration by the court
of first instance.
The Order of Bloem J
[24]
I turn to deal with the order and judgment
of Bloem J in the context of section 18. In paragraph 30.3 the Order
states as follows
“
paragraph 2.4.
shall operate as an interim interdict with immediate effect pending
the outcome of the application”
.
A plain reading of the order clearly sets out the spirit and intent
of the order as that which is interim and susceptible to change
on
the return date.
[25]
It was contended and agued by Herotel that
the applicant never took issue with the fact that the order is final
in effect. This
assertion is not correct if regard is had to the
replying affidavit wherein the entire paragraph 12 with its
sub-paragraphs is
dedicated to reject the contention that the order
is not interlocutory but final. For sake of completeness I shall
refer specifically
to the sub-paragraphs that are self-evident on
this aspect.
[26]
In paragraph 12.1 it is stated “
On
any interpretation the order of 22 February 2022 is interlocutory and
interim”;
Paragraph 12.2 states,
“the merits of the main application have not yet been argued
and determined by the court”;
Paragraph 12.4 states,
“the interim order is not final in effect, dispositive of any
of the issues in the main application
or definitive of the rights of
any of the parties and merely preserves the status quo”;
Paragraph 12.5 states,
“the interim order is conditional upon confirmation on the
return date and will only be finalised on
the return date”;
Paragraph
12.7 states, “the order is an intermediate step in the course
of the litigation, which provides interim protection
in the
applicant’s rights, pending the final determination of the
matter
”
. All the paragraphs above
are a clear and emphatic statement that the applicant takes issue
with the proposition that the order
is final in effect.
[27]
The contention of the applicant regarding
the effect of the order was also followed in its heads of argument
where in paragraph
68 the following is submitted “
that
the order of Bloem J can only be regarded as interim and
interlocutory. It cannot be final in effect and definitive, as is
submitted by the respondents
”.
Undoubtedly the applicant rejects the notion that the order is final
in effect.
[28]
I find myself constrained to agree that on
the objective facts before me, the only sound and proper
interpretation of Bloem J’s
order is that it is an interim
order that is susceptible to change on the return date. This brings
me to the question of section
18 (1) and how the section applies to
the Order.
[29]
I must from the outset mention that I have
difficulty to follow the submission that section 18 (1) is a “
catch
all
” provision which finds
application even in instances where the order is interim in nature or
effect. It could never have
been the intention of the legislature to
render section 18 (2) superfluous without no meaning. Section 18 (2)
is a specific provision
that relates to interlocutory orders which
are ‘not’ suspended unless exceptional circumstances
exist and therefore
requires of an aggrieved party who intends to
appeal the interlocutory order and suspend its operation to do so
through the invoking
of section 18 (3).
[30]
I disagree that the applicant who is the
successful party ought to have brought an application to suspend an
order which is in its
favour. On the contrary, it is Herotel as the
aggrieved party and who has launched an appeal on whom the obligation
lies to apply
for the suspension of the operation of the Order. This
was not done by Herotel.
Contempt of Court and
Urgency
[31]
In
Victoria
Park Ratepayers‘ Association v Greyvenon CC and Others
[2]
Plasket AJ (as he then was) stated: “
Contempt
of court has obvious implications for the effectiveness and
legitimacy of the legal system and the judicial arm of government.
There is thus a public interest element in each and every case in
which it is alleged that a party has unlawfully and in bad faith
ignored or otherwise failed to comply with a court order. This added
element provides to every such case an element of urgency
”.
In
Safcor
Forwarding (Johannesburg) (Pty) Ltd v National Transport
Corbet
JA stated: “
The
Uniform Rules of Court do not provide substantively for the granting
of a rule nisi by the Court. Nevertheless, the practice,
in certain
circumstances, of doing so is firmly embedded in our procedural
law..
.
This
is recognised by implication in the Rules (see, eg, Rule 6 (8) and
Rule 6 (13)). The procedure of a rule nisi is usually restored
to in
matters of urgency and where the applicant seeks interim relief in
order adequately to protect his immediate interests. It
is a useful
procedure and one to be encouraged rather than disparaged in
circumstances where the applicant can show, prima facie,
that his
rights have been infringed and that he will suffer real loss or
disadvantage if he is compelled to rely solely on the
normal
procedures for bringing disputes to Court by way of notice of motion
or summons. The rule nisi procedure must be considered
in conjunction
with the provisions of Rule 6 (12) which, in the case of urgent
applications, permits the Court to:
‘
dispense
with the forms and service provided for in these Rules and (to)
dispose of such matter at such time and place and in such
manner and
in accordance with such procedure (which shall as far as practicable
be in terms of these Rules) as to it seems meet’.
In fact, the rule nisi
procedure does make it possible for the application to come before
the Court for adjudication more speedily
than the usual procedures
for the set down of applications or trials, and it does, in a proper
case, permit of the granting of
interim relief.”
Flowing
from the above authority it is evident that in matters of urgency
such as contempt of court the utilisation of a
rule
nisi
procedure is to be encouraged, since it is a first step in the
committal application. To obtain a
rule
nisi
the onus is lighter than when the rule is to be confirmed and a prima
facie case will suffice for the issue of a
rule
nisi
.
[3]
[32]
The requirements for contempt of court are
trite and are the following:
32.1
the existence of the order;
32.2
the order must be duly served on, or
brought to the notice of the alleged offender;
32.3
there must be non-compliance with the
order; and
32.4
the
non-compliance must be wilful and
mala
fide
[4]
[33]
The
standard of proof which must be applied in applications for contempt
of court was stated by the Constitutional Court in
Matjabeng
Local Municipality v Eskom Ltd and others
[5]
as that for an order of contempt where committal is sought the
standard of proof beyond reasonable doubt applies. On the other
hand
for civil contempt remedies that do not have the consequence of
depriving an individual of their right to freedom and security
of the
person, the civil standard of proof on a balance of probabilities
applies. In
Fakie
N.O v CC11 Systems (Pty) Ltd
,
the requirements for wilful and
mala
fide
were stated thus: “
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
deliberately and mala fide. A deliberate disregard is not enough,
since the non-complier may genuinely albeit mistakenly believe
him or
herself entitled to act in the way claimed to constitute the
contempt. In such a case, good faith avoids infaction. Even
a refusal
to comply that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good faith);
[10] These
requirements - that the refusal to obey should be both wilful and
mala fide, and that unreasonable non-compliance, provided
it is bona
fide, does not constitute contempt – accord with the brander
definition of the crime, of which non-compliance
with civil orders is
a manifestation. They show that the offence is committed not by mere
disregard of a court order, but by the
deliberate and intentional
violation of the court’s dignity, repute or authority that this
evinces. Honest belief that non-compliance
is justified or proper is
incompatible with that intent”
.
[34]
In
casu
,
it is common cause that the order of 22 February 2022 is in extant
and is ordering the respondents to terminate their offending
conduct
and to desist from undertaking any trenching, excavation and
construction of an electronic communication network within
the area
of the applicant. It was ordered by the court that the order will
operate as an interim interdict pending the outcome
of the main
application. The order was served on the first to fifth respondent.
[35]
It is my view that there could not have
been any other interpretation of the effect of the order or its
import, neither could there
have been any misunderstanding to
interpret it differently from its ordinary meaning, that the order
was interlocutory with an
interim relief. I am not persuaded that
Herotel has discharged its evidentiary burden to avoid its conduct
being seen as that which
is wilful and
mala
fide
. On a close scrutiny I find that
Herotel’s conduct was wilful and
mala
fide
. Its conduct is a deliberate and
intentional violation of the Order of Bloem J, thereby evince
non-compliance that tends to impugn
the authority and dignity of this
court. It is on these bases that I find it necessary to cause the
sixth respondent to file an
affidavit to explain its conduct relating
to the advice which has been given regarding section 18 of the Act.
[36]
In
Protea
Holdings Ltd v Wriwt and Another
[6]
the court held that one of the objects of contempt proceedings is
punishing the guilty party to compel performance of the order.
The
element of urgency would be satisfied if in fact it was shown that
respondents were continuing to disregard the order and an
applicant
would be entitled, as a matter of urgency, to approach the court to
get the respondents to desist. In this matter the
contempt is ongoing
and that has rendered the matter urgent. In this matter the actions
of Herotel are ongoing which rendered the
matter urgent. I therefore
find that the applicant has succeeded to show the urgency with which
the matter had to be brought to
court and is thus entitled to the
rule
nisi
it seeks.
[37]
In
paragraph 3 of the notice of motion the applicant further seeks a
declaratory to enforce the compliance with the Order. In support
of
its application for the relief sought it referred to
Municipal
Manager O.R Tambo District Municipality and Another v Ndabeni
[7]
.
In a long line of authorities before Ndabeni I have been referred to,
our courts have pronounced on the importance of the compliance
and
respect that ought to be given to court orders, one has to look no
further than the remarks by Khampepe J in
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
[2021] ZACC 18
;
2021 (5) SA 327
(CC);
2021 (9) BCLR 992
(CC) (State Capture)
where
the learned judge said “
[t]he
rule of law, a foundational value of the Constitution, requires that
the dignity and authority of the courts be upheld. This
is crucial,
as the capacity of the courts to carry out their functions depends
upon it. As the Constitution commands, orders and
decisions issued by
a court bind all persons to whom and organs of State to which they
apply, and no person or organ of State may
interfere, in any manner,
with the functioning of the courts. It follows from this that
disobedience towards court orders or decisions
risks rendering our
courts impotent and judicial authority a mere mockery
.”
It is for that sentiments expressed above and in many other
authorities that I am persuaded to grant the declaratory order
that
is sought by the applicant and which in my view justified under the
circumstances of this matter.
[38]
In light of aforegoing the application
succeeds and the following order will issue:
34.1.
That the applicant’s non-compliance
with the rules of this court relating to service and time be and is
hereby condoned and
that the application is dealt with as a matter of
urgency.
34.2.
A
rule nisi
do hereby issue calling upon the first to fifth respondents and/or
any other interested party to show cause of any at 09h30 on
Thursday,
21 July 2022 why a final order should not be granted in the following
terms:
34.2.1.
That the first respondent be ordered to pay
a fine in an amount to be determined by this court;
34.2.2.
The second to fifth respondents be
committed to prison for a period to be decided by this court and for
warrants for the arrest
of the second to fifth respondents be issued;
34.2.3.
The warrants in paragraph 35.2.2 be stayed
pending the return date at 09h30 Thursday, 21 July 2022;
34.2.4.
The South African Police Service are
authorised to assist with the execution of the order of 22 February
2022 under case number
303/2022;
34.2.5.
The first to fifth respondents pay the
costs of this application jointly and severally, the one paying the
other to be absolved,
on an attorney own client scale;
34.2.6.
The sixth respondent to pay costs of this
application
de
bonis propriis
,
jointly and severally the one paying the other to be absolved on an
attorney own client scale;
34.2.7.
That pending the return date of this
rule
nisi
that the respondents and/or any
other person under the respondents direction is directed to comply in
all respects with the order
of Bloem J under case number 303/2022 of
22 February 2022 and with immediate effect cease and desist from
undertaking any trenching,
excavation and/or construction works
related to the fibre and/or telecommunication cabling within the
jurisdictional area of Graaff-Reinet.
34.3.
The applicant is directed to serve a copy
of this application and this order upon the second to fifth
respondents.
34.4.
In the event that the Sheriff is prevented
and/or unable to effect personal service of this order and/or another
legal processes
in these proceedings upon the second to fifth
respondents, the Sheriff is hereby authorised to effect service upon
the second to
fifth respondents via email and/or via sms
message/whatsapp to their cellular phone numbers and that such
service will be accepted
as valid service.
34.5.
The sixth respondent is directed to file an
affidavit, within 15 (fifteen) das subsequent to the issue of the
rule nisi
explaining the contents of its letter dated 25 February 2022 and to
specifically address:
34.5.1.
The advice pertaining to section 18 (2) and
18 (3) of the Act;
34.5.2.
Why costs
de
bonis propriis
on an attorney own
client scale, should not be ordered against the sixth respondent.
34.6.
Costs of this application are reserved to
be determined on the return date of the
rule
nisi
.
M.V. NQUMSE
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES
Counsel for the
applicant
:
Adv. Mullins (S.C.) with Adv. Morgan
Instructed
by
: Smit
Sewgoolan Incorporated
c/o Nolte Smit Inc.
51A Hill Street
Grahamstown
Counsel for the
respondents
:
Adv. Potgieter (S.C.)
Instructed
by
: Wikus Van
Rensberg Attorneys
c/o Neville Borman &
Botha
High Street
Grahamstown
Date of
hearing
: 08 March 2022
Date of delivery of
judgment
:
22 March 2022
[1]
1993
(1) SA 47
(w)
[2]
2004
(3) ALL SA 623 (SE)paragraph 5
[3]
Ex
parte Alexander and Others
[1959] 2 ALL SA 414
at paragraph 417, ex
parte Stofer
[1996] 4 ALL SA 329
(e) at 332
[4]
Pheko
and others v Ekurhuleni City
2015 (5) SA 600
(cc) paragraph 32
[5]
2018
(1) SA 1
(cc)
[6]
[1978]
2 ALL SA 417
(w) at 420 also ated as
1978 (3) SA 865
(w)
[7]
CCT
45/21
[2022] ZACC 3
(14 February 2022 at paragraph 26