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[2022] ZAMPMBHC 74
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City of Mbombela Local Municipality v Masakhe Media (Pty) Ltd (27/2021) [2022] ZAMPMBHC 74 (6 September 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 27 / 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
06
September 2022
In
the matter between:
CITY
OF MBOMBELA LOCAL MUNICIPALITY
APPLICANT
And
MASAKHE
MEDIA (PTY)
LTD RESPONDENT
(Formerly
known as Satobe Outdoor (Pty) Ltd)
J
U D G M E N T
RATSHIBVUMO
J:
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
is
deemed to be 10H00 on 06 September 2022.
[1]
This is an
interlocutory application in which the Applicant is the Respondent in
the main application, and the Respondent is the
Applicant. For ease
of reference, parties are referred to in this judgment as they are in
the main application. In this application,
the Respondent seeks a
declaration that the Applicant is in contempt of court and that a
sanction should be imposed in which the
Municipal Manager of the
Applicant is sentenced to imprisonment for 30 days, which is
suspended on condition that he complies with
the court order within
10 days.
[2]
Background.
Following
is a brief background leading to the current application. In January
2021, the Applicant brought an application against
the Respondent
seeking an declaratory order to the effect that the contract it had
with the Respondent has been terminated and
for the removal of
advertising boards that were installed by the Respondent. The
Respondent filed a notice of intention to oppose
and served a Rule 35
notice on the Applicant in which it required access to various
documents necessary to enable it to respond
to allegations in the
application. The notice went unheeded by the Applicant. An
application was as such brought by the Respondent
to compel the
Applicant to furnish the documents required. The application was
opposed by the Applicant, on the basis that the
documents were
irrelevant. However, on 26 October 2021, an order was issued by this
court in which the Applicant was ordered to
comply with the
Respondent’s Rule 35 notice within 10 days.
[3]
In
an answering affidavit, Mr. Mosala who is the Municipal Manager of
the Applicant alleged that “in order to comply with
paragraph 1
of the order, the Applicant discovered all documents in its
possession in respect of the appointment of the new service
provider,
and all other documents incidental thereto.”
[1]
The Applicant discovered the said documents on 09 November 2021
through electronic means, he averred. He therefore contended that
the
Municipality complied with the court order. The Respondent however
submitted that the Applicant has not fully complied with
the order as
some of the required documents were not discovered. To this, Mr.
Mosala responded that “the requested documents
exist on the
mind of the Respondent and or the Respondent thinks that this
documents exist despite the discovered documents (sic).”
[4]
Mr.
Mosala further averred that the instructing attorneys for the
Applicant had written to the Respondent informing them that the
documents discovered were the only documents in the Applicant’s
possession. The Respondent’s contention against this
standpoint
is that if the documents did not exist, the Applicant would have
indicated to the court when opposing the application
to discover,
instead of raising “irrelevance” as the only basis for
its opposition. To this, Mr. Mosala said, “the
Applicant’s
defence in respect of Rule 30A of the Uniform Rules was never about
misleading the court that the documents exist,
but grounded on the
principle of relevance.”
[2]
[5]
The
Respondent went to great lengths to demonstrate that the documents
would under normal circumstances be available and in possession
of
the Applicant, in an attempt to convince the court to reject the
Applicant’s version to the effect that the documents
do not
exist or that they are not in its possession. For example, the
Respondent argues that the Applicant attached a contract
but did not
attach the annexures referred to therein. Those annexures remain
undiscovered. The Respondent believes that some of
these documents
could be under the care of the Applicant’s employees. Failure
by the Municipal Manager to indicate the steps
taken to search them
or to attach confirmatory affidavits by these employees confirming
their absence makes the Applicant guilty
of contempt of court, it
argued.
[6]
The crime
of contempt of court.
Civil
contempt, as it is commonly referred to, was revisited by the Supreme
Court of Appeal (the SCA) in
Fakie
NO v CCII Systems (PTY) LTD
[3]
wherein the requirements for
a conviction for contempt of court emanating from a court order in
civil proceedings were laid down.
In that case, coincidentally
failure by the Auditor-General to furnish required documents as
ordered by the court was revisited
as to whether it was contempt of
court. Before dealing with the requirements for a conviction, the SCA
indicated that making such
a determination in an application “depends
on the circumstances of the admitted default.”
[4]
[7]
The
statement above is a reminder that applications are not a means
through which the courts make factual findings where there are
disputes. I shall revert to the impact of disputed facts in
applications later in this judgment.
[5]
It suffices for now to merely highlight that this position was fully
elucidated in
National
Director of Public Prosecution v Zuma
[6]
when the SCA stated,
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order. It may be different if the respondent's version consists
of bald or uncreditworthy denials, raises fictitious
disputes of
fact, is palpably implausible, far-fetched or so clearly untenable
that the court is justified in rejecting them merely
on the papers.”
[8]
As
for the requirements for a conviction in civil contempt, the SCA held
in
Fakie
[7]
as follows:
[6]
It is a crime unlawfully and intentionally to disobey a court
order.
[8]
This type of
contempt of court is part of a broader offence, which can take many
forms, but the essence of which lies in
violating the dignity, repute
or authority of the court. The offence has in general terms received
a constitutional ‘stamp
of approval’, since the rule of
law – a founding value of the Constitution – ‘requires
that the dignity
and authority of the courts, as well as their
capacity to carry out their functions, should always be maintained’
[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’.
[9]
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 the infraction. Even a refusal to
comply that is
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of good faith).
[10]
[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
broader 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.
[11]
Honest belief that non-compliance is justified or proper is
incompatible with that intent.
[9]
In
order to be successful, the Respondent should therefore prove that
the Applicant did not only deliberately disobey a court order,
but
that its conduct was wilful and
mala
fide
.
That finding should be made from the admitted facts. The only time a
court may make findings on disputed facts in applications
is when a
respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably
implausible,
far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers.
[12]
[10]
The Applicant
avers that it discovered all the documents in its possession and that
the rest do not exist or that if they do, they
are not in its
possession. The Respondent raises two urgings to counter this
possibility. First it argues that if they did not
exist, the
Applicant would have said so in its opposition to the application for
discovery. This argument ignores the fact that
the style in
litigation adopted by the Applicant may differ from the one preferred
or would have adopted by the Respondent if it
was in its place. While
it may be a wiser approach in litigation for a party to raise all the
defences at its disposal, or in the
alternatives; it is not unheard
of for litigants to raise only what they consider to be a strong
defence while all other defences
are left out. This is usually
motivated by the confidence a party would have that the court would
rule in its favour. I therefore
conclude that failure to put this as
a defence does not establish the existence of the required documents.
[11]
The second
argument is all about reasonable inference from the circumstances. If
the Agreement makes reference to annexures, it
can be inferred under
normal circumstances that the annexures are kept with the said
agreement. This inference, ignores the reality
on the ground.
Practically, documents do go missing through theft, corruption or
misfiling. In other instances, they can exist
but being possessed by
other parties than those expected or supposed to keep mthem. After
all, the court order referred to above,
did not make a finding on
what documents the Applicant had in its possession, but simply
ordered it to discover them.
[12]
The Respondent
was aware that there was dispute on whether the Applicant had the
required documents in its possession even before
launching this
application. This dispute cannot be categorised as bald or
uncreditworthy denial or fictitious dispute of fact.
The Respondent
cannot say it as a fact that the documents exist or that they are in
the Applicant’s possession, except to
raise doubts on the
Applican’s denials. The common facts of this case do not
sustain the Respondent’s case as there
is no bases upon which
the court can reject that the Applicant discovered all the documents
in its possession. Since this is not
a trial, no matter how doubtful
the version of the Applicant may be painted, the court cannot make
findings on disputed facts through
motion proceedings.
[13]
It follows
therefore that the Respondent has failed to show that the Applicant’s
failure to discover all the documents it
had required was a conduct
meant to disobey the court order and that it acted with wilfulness
and
mala
fide
. I
cannot, with the facts presented, hold that the Applicant withheld
some of the documents that it was ordered to discover, in
a
deliberate act of defiance of a court order.
[14]
For the
aforesaid reasons, I make the following order:
The
application is dismissed with costs.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
MPUMALANGA
DIVISION
MBOMBELA
FOR
THE APPLICANT :
ADV L ZWANE
INSTRUCTED
BY
:
QQ MKHATSHWA INC
:
MBOMBELA
FOR
THE RESPONDENT :
ADV MJ ENGELBRECHT SC
:
ADV PANTAZIS
INSTRUCTED
BY
:
SIM ATTORNEYS INC
C/O:
DU TOIT-SMUTS & PARTNERS
:
MBOMBELA
DATE
HEARD :
30 AUGUST 2022
JUDGMENT
DELIVERED
:
06 SEPTEMBER 2022
[1]
See para 7 of the answering affidavit on p. 203 of the paginated
bundle.
[2]
See para 13 of the answering affidavit on p. 204 of the paginated
bundle.
[3]
(653/04)
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) (31 March 2006).
[4]
See
Faki
(supra)
at para 5.
[5]
See paragraphs 10-12 below.
[6]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.
[7]
Supra
at footnote 3 at para 6, 9 & 10.
[8]
S
v Beyers
1968
(3) SA 70 (A).
[9]
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996
(3) SA 355
(A) 367H-I;
Jayiya
v Member of the Executive Council for Welfare, Eastern Cape
2004 (2) SA 602
(SCA) paras 18 and 19.
[10]
Noel
Lancaster Sands (Edms) Bpk v Theron
1974 (3) SA 688
(T) 692E-G per Botha J, rejecting the contrary view
on this point expressed
Consolidated
Fish v Zive
(above). This court referred to Botha J’s approach with
seeming approval in
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) 368C-D.
[11]
See
the formulation in
S
v Beyers
1968 (3) SA 70
(A) at 76E and 76F-G and the definitions in Jonathan
Burchell
Principles
of Criminal Law
(3ed, 2005) page 945 (‘Contempt of court consists in
unlawfully and intentionally violating the dignity, repute or
authority
of a judicial body, or interfering in the administration
of justice in a matter pending before it’) and CR Snyman
Strafreg
(4ed, 1999) page 329 (‘Minagting van die hof is die
wederregtelike en opsetlike (a) aantasting van die waardigheid,
aansien
of gesag van ‘n regterlike amptenaar in sy regterlike
hoedanigheid, of van ‘n regsprekende liggaam, of (b)
publikasie
van inligting of kommentaar aangaande ‘n aanhangige
regsgeding wat die strekking het om die uitstlag van die regsgeding
te beïnvloed of om in te meng met die regsadministrasie in
daardie regsgeding’).
[12]
See
National
Director of Public Prosecution v Zuma (supra: fn 6).