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[2011] ZASCA 237
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Gauteng Province Driving School Association and Others v Amaryllis Investments (Pty) Ltd and Others (006/2011) [2011] ZASCA 237; [2012] 1 All SA 290 (SCA) (1 December 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 006/2011
GAUTENG
PROVINCE DRIVING SCHOOL ASSOCIATION
….....
First
Appellant
GODFREY
MTHAISA MASINGA
…..........................................
Second
Appellant
ALBERT
MATHINA
…....................................................................
Third
Appellant
and
AMARYLLIS
INVESTMENTS (PTY) LTD
…..............................
First
Respondent
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
….................................................................
Second
Respondent
Neutral citation:
Gauteng Province Driving School
Assocation & others v Amaryllis Investments (Pty) Ltd &
another
(006/11)
[2011] ZASCA 237
(1 December 2011)
BENCH:
PONNAN, MALAN and WALLIS JJA
HEARD: 18 NOVEMBER 2011
DELIVERED: 1 DECEMBER 2011
SUMMARY:
Mandament van spolie – rule 49(11) of the Uniform Rules
– leave to execute judgment pending appeal – contempt of
order of court
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
North Gauteng High Court
(Pretoria)
(Mabuse J
sitting as court of first instance).
(1) The appeal by the first appellant is dismissed with costs.
(2) The appeal by the second and third appellants against paragraphs
1, 3 and 4 of the order of the court below is allowed and
the order
is amended by the deletion of paragraphs 3 and 4 and the substitution
of paragraph 1 with the following:
‘
The rule nisi granted by the court on 28
July 2010 is discharged.'
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (Malan and Wallis JJA concurring):
[1] On 12 September 2007 and pursuant to an agreement between them,
the second respondent, the City of Johannesburg Metropolitan
Municipality (the City), granted use of a parking area on property
owned by it (being erven 849, 851 and a portion of 847 Ferndale,
Randburg) (the parking area) to the first respondent, Amaryllis
Investments (Pty) Ltd (Amaryllis). From that date Amaryllis was
in
undisturbed occupation of the parking area until 23 May 2009 when
certain individuals purporting to act on behalf the first
appellant,
the Gauteng Province Driving School Association (GPDSA), a section 21
company, allegedly cut the lock and chain that
was utilised by
Amaryllis to secure the gate to the parking area. Amaryllis countered
with an application to the North Gauteng
High Court for urgent relief
and on 2 September 2009 the following order issued (per Phatudi J):
'[16.1] [Amaryllis’s] possession of the parking
area on Erven 849, 851 and portion of 847 Ferndale, Randburg be
restored immediately.
[16.2] [GDPSA] is ordered to remove all chains and locks
on gates leading to [the parking area].
[16.3] [GDPSA] is ordered to pay [Amaryllis’]
costs on party and party scale.'
[2] That order was a simple
mandament van spolie
. In
Nino
Bonino v De Lange
1906 TS 120
at 122 Innes CJ described
spoliation as ‘any illicit deprivation of another of the right
of possession which he has, whether
in regard to movable or immovable
property or even in regard to a legal right’. The learned Chief
Justice explained:
‘
It is a fundamental principle
that no man is allowed to take the law into his own hands; no one is
permitted to dispossess another
forcibly or wrongfully and against
his consent of the possession of property, whether movable or
immovable. If he does so, the
Court will summarily restore the
status
quo ante
, and will
do that as a preliminary to any inquiry or investigation into the
merits of the dispute.’
The accepted principle is that the
mandament van spolie
envisages ‘not only the restitution of possession but also the
performance of acts, such as repairs and rebuilding, which
are
necessary for the restoration of the
status quo ante’
(
Administrator, Cape, & another v Ntshwaqela & others
1990 (1) SA 705
(A) at 717E-F).
[3] On 7 September 2009 GPDSA served and filed an application for
leave to appeal against the spoliation order. On 15 September
2009
that application was struck off the roll. It was re-enrolled on 1
October 2009 but thereafter dismissed by Phatudi J on 7
October 2009.
An application, by way of petition to the President in terms of
21(3)
(a)
of
the Supreme Court Act 59 of 1959, was then lodged by GPDSA
on 1 February 2010 with the Registrar of this court. After the filing
of answering and replying affidavits, the petition was considered by
a panel of two Judges designated by the President in terms
of s
21(3)
(b)
. They evidently formed the view that there were
reasonable prospects of the appeal against the spoliation order
succeeding and
on 7 April 2010 granted leave to appeal to the full
court. I pause to record that although a spoliation order does not
decide what,
apart from possession, the rights of the parties to the
property spoliated were before the act of spoliation and merely
orders
that the status quo be restored, it is to that extent a final
order and is therefore appealable (
Nienaber v Stuckey
1946 AD
1049
at 1053).
[4] On 5 May 2010 and pursuant to the grant of leave to appeal by
this court, GPDSA served and filed with the Registrar of the
high
court a notice of appeal. The noting of the appeal had the effect of
suspending execution of the spoliation order (see
Reid &
another v Godart & another
1938 AD 511
at 513). Amaryllis
thereupon made application two days later to Phatudi J for leave to
execute the order in terms of rule 49(11)
of the Uniform Rules.
Notwithstanding opposition to that application by GPDSA, the learned
Judge issued the following order (the
execution order) on 11 May
2010:
'[13.1] That it is directed that paragraph 16.1 and 16.2
of the order made by this Court on 2 September 2009 in case No
41787/2009
shall not be suspended pending the decision [in the] Full
Bench appeal against such order;
[13.2] That the Sheriff, in whose area of jurisdiction
the premises at Erven 849, 851 and 847 Ferndale is situated, is
directed
and ordered to take all necessary steps to give effect to 1;
[13.3] That [Amaryllis] shall not be required to furnish
security as contemplated in Rule 49(11);
[13.4] That [Amaryllis] is ordered to pay [GDPSA’s]
costs of this application on party and party scale.'
[5] Both parties were aggrieved – each by different aspects of
the execution order. Each accordingly sought leave to appeal.
Amaryllis’ application, which was dated 28 May 2010 and filed
with the Registrar of the high court on 18 June 2010, was restricted
solely to the adverse costs order granted against it. Whilst GDPSA's
application dated 8 June 2010, which was served on Amaryllis’
attorney a day later, was directed against ‘the whole of the
judgment and order’ of Phatudi J. Those applications were
heard
on 29 July 2010. GPDSA’s application was dismissed with costs.
Amaryllis’ application on the other hand succeeded
- Phatudi J
directing that it be heard by the full court together with the appeal
against the grant of the spoliation order.
[6] In the meanwhile on 3 June 2010 a copy of the order of Phatudi J
of 11 May 2010 was served by the Sheriff by affixing it to
the gate
of the principal place of business of GPDSA. That notwithstanding,
according to Amaryllis, GPDSA refused to vacate those
premises. On 2
July 2010 the Sheriff executed the spoliation order and removed
from the parking area all of those persons occupying it through
GDPSA. Three days later GPDSA re-took occupation of the parking area
after once again cutting the chain and lock. The attitude of
GPDSA as
initially communicated in the correspondence exchanged between the
parties and later re-iterated in its affidavits was:
First,
' . . . it is [GPDSA’s] contention that the two
applications for leave to appeal lodged by each of the parties . . .
have
effectively suspended the operation of Phatudi J's order of 11
May 2010 until same would have been adjudicated upon and disposed
of
by Phatudi J.'
And, second,
'Phatudi J's approach and conduct in expressly or
impliedly over-ruling or re-visiting or purporting to over-rule or
re-visit the
issue of prospects of success of our client, after
having been disposed of by the SCA in terms of the order of 7 April
2010 is
unheard of and a clear breach of the stare decisis rule or
principle, and certainly requires the attention and consideration of
an Appeal Court as it no doubt sets
a very bad
precedent
. Like any other Lower Court, the
Honourable Phatudi J is bound by decisions of the SCA.'
[7] According to Amaryllis: '[it] found it very difficult to
comprehend GPDSA’s interpretation of the matter and events’.
It thus on 13 July 2010 lodged yet a further application with the
high court, in which it sought an order:
'2. That [GDPSA] be declared in contempt of court;
3. That [GDPSA] be imprisoned for a period of the 30
(thirty) days;
4. That prayer 3 is suspended, on condition that [GDPSA]
complies with the order of the above Honourable Court dated the 11
th
May 2010 under case number 41787/2009 granted by the
Honourable Justice Phatudi, within 7 (seven) days from date hereof;
5. That a further declarator be issued in terms whereof
it is confirmed that the court order granted by the Honourable
Justice Phatudi
under case number 41787/2009 on the 11
th
May 2010 shall not be suspended pending the decision of
the Full Bench Appeal in the main application against such order;
6. That [GDPSA] be ordered to pay the costs hereof on a
scale as between attorney-and-own- client.'
[8] GPDSA objected to Amaryllis’s contempt application and
moreover, counter-applied seeking a declarator that it constituted
an
irregular or improper step. Both of those applications came before
Fabricius J, who, on 28 July 2010, issued the following order
(the
contempt order):
'1. That [GDPSA] be declared in contempt of court;
2. That [GDPSA's] directors, Godfrey Mthaisa Masinga and
Albert Mathina, are called upon to show cause, on 17 August 2010 why
an
order should not be granted against them, in their capacities as
directors of [GDPSA], that they are in contempt of Court.
3. That Godfrey Mthaisa Masinga and Albert Mathina, in
their capacities as directors of [GDPSA], be imprisoned for a period
of the
30 (thirty) days;
4. That 3 is suspended, on condition that Godfrey
Mthaisa Masinga and Albert Mathina, in their capacities as directors
of [GDPSA],
complies with the order of the above Honourable Court
dated the 11
th
May
2010 under case number 41787/2009 granted by the Honourable Justice
Phatudi, within 7 (seven) days from date hereof;
5. That a further declarator be issued in terms whereof
it is confirmed that the court order granted by the Honourable
Justice Phatudi
under case number 41787/2009 on the 11
th
May 2010 shall not be suspended pending the decision of
the Full Bench Appeal in the main application against such order.
6. That [GDPSA] be ordered to pay the costs hereof on a
sale as between attorney and own client.'
[9] On 26 August 2010 Fabricius J furnished brief reasons for having
made the contempt order. He stated:
'4. At the time I was satisfied (subject to the
amendment to par. 2 of the Court order) that a prima facie case had
been made out
for the relief sought.
5. It seems clear to me (at least as a prima facie
basis) that the order with a return date was called for and that in
any event
the Court order referred to in par. 5 should be enforced.
There was no justification for any argument to the contrary.
6. First Respondent's conduct seemed to me to be
vexatious, and in the exercise of my discretion I deemed an
appropriate court order
to be justified.'
[10] The matter eventually came before Mabuse J, who, on 12 November
2010, confirmed the rule nisi envisaged in paragraph 2 and
in all
other respects issued an order in identical terms to that issued
previously by Fabricius J. On 10 December 2010 Mabuse J
granted leave
to GPDSA to appeal to this court. Although cited as a party, the City
took no part in the proceedings either in this
court or the one
below. Mr Godfrey Mthaisa Masinga and Mr Albert Mathina are
respectively the second and third appellants before
us.
[11] I deem it convenient to first dispose of the appeal of the
second and third appellants, Messrs Masinga and Mathina. In
Twentieth
Century Fox Film Corporation & others v Playboy Films (Pty) Ltd &
another
1978 (3) SA 202
(W) at 203 King AJ stated:
'A director of a company who, with knowledge of an order
of Court against the company, causes the company to disobey the order
is
himself guilty of a contempt of Court. By his act or omission such
a director aids and abets the company to be in breach of the
order of
Court against the company. If it were not so a court would have
difficulty in ensuring that an order
ad factum
praestandum
against a company is enforced by
a punitive order,
Vide Halsbury
4
th
ed vol 9 at 75. Consequently Jagger who had knowledge of
the order of Court is guilty of a contempt of an order of this Court.
An
order
ad factum praestandum
against a company should also be served on its directors
if a punitive order is to be sought against the directors in order to
establish
knowledge of the order of Court.'
No doubt those considerations weighed with Fabricius J. But, it seems
to me, that there was simply no factual foundation for the
joinder of
Messrs Masinga and Mathina as parties to the proceedings, much less
for a rule nisi to have issued against them. For,
as Mr Masinga,
makes plain in his affidavit:
'I have been authorised by Mr Albert Mathina ("Mathina")
to also depose to this affidavit on his behalf, and I annex hereto
his confirmatory affidavit marked "GM1".
On Tuesday, 27 July 2010, an application for contempt of
Court by the Applicant, Amaryllis against the First Respondent, the
Gauteng
Province Driving School Association came for hearing on an
urgent basis before the Honourable Mr Justice Fabricius ("Fabricius
J"). Immediately after being addressed by Counsel for the
Applicant, and before hearing our Counsel, Fabricious J expressed
the
view and conclusion that the First Respondent was in contempt of
Court.
However, Fabricius J pointed out to the Applicant's
Counsel that the difficulty which the Applicant faced is that the
allegation
and case of contempt as contained in the Applicant's
Notice of Motion and Founding Affidavit were not directed at any
specific
person other than the First Respondent and therefore that it
would be difficult and impractical for the Court to grant the relief
sought by the Applicant.
It was then
meru moto
suggested by Fabricius J that the Applicant's legal
representatives should go and prepare a draft order in which an order
for contempt
of Court is sought to be made as against specific
persons and the matter was stood down until Wednesday, 28 July 2010
for this
purpose. I was present in Court at the time.'
. . .
Mathina and I were not joined as parties and no specific
allegations or at all were made in the Applicant's Founding Affidavit
as
to the facts and conduct on our part alleged to have constituted
contempt of Court until when the draft Court Order which was
presented
by the Applicant's legal representatives on 28 July 2010
when it was first intimated that we may be in contempt of Court.
I am advised that it is trite law that in motion
proceedings the Notice of Motion and Affidavits filed before the
Court constitute,
both the pleadings and evidence. I am advised that
no amended Notice of Motion nor supplementary founding affidavit
directed against
Mathina and I were filed at all by the Applicant
providing and setting out specific basis and grounds upon which we
are required
to be held in contempt of Court.
Mathina and I deny that we, in our capacities as general
secretary and director, disobeyed or failed to comply with the Court
Order
or that there was wilfulness and
mala
fides
on our part in that regard. This has
not been proven by the Applicant beyond reasonable doubt or at all.'
Amaryllis not having filed a replying affidavit in answer to those
allegations, they went undisputed. There was thus no evidence
that
either Mr Masinga or Mr Mathina with knowledge of the order of court
had caused GPDSA to disobey it. Mabuse J ought therefore
to have
discharged the rule nisi that Fabricius J had issued against them. It
follows that their appeal must succeed. That leaves
the appeal of
GPDSA.
[12] Rule 49(11) and (12) of the Uniform Rules of Court provide that:
'(11) Where an appeal has been noted or application for
leave to appeal against or to rescind, correct, review or vary an
order
of a court has been made, the operation and execution of the
order in question shall be suspended, pending the decision of such
appeal or application, unless the court which gave such order, on the
application of a party, otherwise directs.
(12) If the order referred to in subrule (11) is carried
into execution by order of the court the party requesting such
execution
shall, unless the court otherwise orders, before such
execution enter into such security as the parties may agree or the
registrar
may decide for the restitution of any sum obtained upon
such execution. The registrar's decision shall be final.'
This restates the accepted common-law rule that the execution of a
judgment is automatically suspended upon the noting of an appeal,
with the result that, pending the appeal, the judgment cannot be
carried out and no effect can be given thereto, except with the
leave
of the court which granted the judgment. To obtain such leave the
party in whose favour the judgment was given must make
a special
application in terms of Rule 49(11).
[13] In
South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd
1977 (3) SA 534
(A) at 545B-G Corbett JA set
out the following general principles to be applied in the
consideration of applications under Rule
49(11):
'The Court to which application for leave to execute is
made has a wide general discretion to grant or refuse leave and, if
leave
be granted, to determine the conditions upon which the right to
execute shall be exercised . . . This discretion is part and parcel
of the inherent jurisdiction which the Court has to control its own
judgments . . . In exercising this discretion the Court should,
in my
view, determine what is just and equitable in all the circumstances,
and, in doing so, would normally have regard,
inter
alia
, to the following
factors:
(1) the potentiality of irreparable harm or prejudice
being sustained by the appellant on appeal (respondent in the
application)
if leave to execute were to be granted;
(2) the potentiality of irreparable harm or prejudice
being sustained by the respondent on appeal (applicant in the
application)
if leave to execute were to be refused;
(3) the prospects of success on appeal, including more
particularly the question as to whether the appeal is frivolous or
vexatious
or has been noted not with the
bona
fide
intention of seeking to reverse the
judgment but for some indirect purpose, e.g., to gain time or harass
the other party; and
(4) where there is the potentiality of irreparable harm
or prejudice to both appellant and respondent, the balance of
hardship or
convenience, as the case may be.'
[14] The thrust of GPDSA’s case before this court (as indeed it
had been before the high court) was: first, that an application
for
leave to appeal had been lodged, which had the effect of suspending
Phatudi J’s execution order; second, in the light
of the
Supreme Court of Appeal (SCA) order of 7 April 2010, which granted
leave to GPDSA to appeal against the spoliation order:
'Phatudi J
would in terms of the principle of the hierarchy of the courts and/or
the
stare decisis
principle not have been competent nor
empowered to revisit the issue of prospects of success'; and, third,
that Amaryllis had in
any event failed to discharge the onus resting
upon it. Each of those contentions will be considered in turn.
As to the first
:
[15] In
South Cape Corporation,
Corbett JA held that an order
granting leave to execute a judgment or order pending an appeal must
be classified as purely interlocutory
and consequently not
appealable. In
Minister of Health & others v Treatment Action
Campaign & others (No 1)
2002 (5) 703 (CC) paras 10-12 the
Constitutional Court stated:
'Before making an order to execute pending appeal,
therefore, a Court will have regard to the possibility of irreparable
harm and
to the balance of convenience of the parties, as the Judge
clearly did in this case. Having granted leave to execute, permitting
an aggrieved litigant to appeal that execution order pending the
final appeal would generally result not only in the piecemeal
determination of the appeal, but would "stultify the very order
. . . made".
Moreover, as has been indicated above, an order to
execute pending appeal is an interlocutory order. As such, it is an
order which
may be varied by the Court which granted it in the light
of changed circumstances. To the extent, therefore, that a litigant
considers
that new circumstances have arisen which would impact upon
the Court's decision to order execution pending appeal, the litigant
may approach that Court once again to seek a variation or, where
appropriate, clarification of the order.
All these considerations make it plain that it will
generally not be in the interests of justice for a litigant to be
granted leave
to appeal against an interim order of execution.
Ordinarily, for an applicant to succeed in such an application, the
applicant
would have to show that irreparable harm would result if
the interim appeal were not
to
be granted ― a matter which would, by definition, have been
considered by the Court below in deciding whether or not to
grant the
execution order. If irreparable harm cannot be shown, an application
for leave to appeal will generally fail. If the
applic
ant
can show irreparable harm, that irreparable harm would have to be
weighed against any irreparable harm that the respondent (in
the
application for leave to appeal) may suffer were the interim
execution order to be overturned.'
But even were one to assume in GPDSA’s favour that the
implementation order was indeed appealable on the basis of
irreparable
harm, no such allegation was made, and its application
for leave to appeal the execution order was dismissed by Phatudi J on
29
July 2010. And yet even from that date onwards there is no
indication that GPDSA complied with the order of the high court. Thus
on its own version, it, at the very least, acted from then on in
disregard of the court order.
As to the second
:
[16] In my view counsel’s reliance on the doctrine of
stare
decisis
is misplaced. In
Ex Parte Minister of Safety and
Security: In Re S v Walters
[2002] ZACC 6
;
2002 (4) SA 613
(CC) para 57 Kriegler
J explained:
'The words are an abbreviation of a Latin maxim,
stare
decisis et non quieta movere
, which means
that one stands by decisions and does not disturb settled points. It
is widely recognised in developed legal systems.
Hahlo
and Kahn
[Hahlo and Kahn
The
South African Legal System and its Background
(1968)]
describe this deference of the law for precedent as a manifestation
of the general human tendency to have respect for experience.
They
explain why the doctrine of
stare decisis
is so important, saying:
"In the legal system the calls of justice are
paramount. The maintenance of the certainty of the law and of
equality before
it, the satisfaction of legitimate expectations,
entails a general duty of Judges to follow the legal rulings in
previous judicial
decisions. The individual litigant would feel
himself unjustly treated if a past ruling applicable to his case were
not followed
where the material facts were the same. This authority
given to past judgments is called the doctrine of precedent."'
More recently in
Camps Bay Ratepayers Association v Harrison
2011 (4) 42 (CC) paras 28-30 (footnotes omitted) Brand AJ stated:
'This argument raises issues concerning the principle
that finds application in the Latin maxim of
stare
decisis
(to stand by decisions previously
taken) or the doctrine of precedent. ... What it boils down to ...
is: "certainty, predictability,
reliability, equality,
uniformity, convenience: these are the principal advantages to be
gained by a legal system from the principle
of
stare
decisis
." Observance of the doctrine has
been insisted upon, both by this Court and by the Supreme Court of
Appeal. And I believe
rightly so. The doctrine of precedent not only
binds lower courts but also binds courts of final jurisdiction to
their own decisions.
These courts can depart from a previous decision
of their own only when satisfied that that decision is clearly wrong.
Stare decisis
is
therefore not simply a matter of respect for courts of higher
authority. It is a manifestation of the rule of law itself, which
in
turn is a founding value of our Constitution. To deviate from this
rule is to invite legal chaos.'
[17] In this case GPDSA was held to have acted in contempt of the
execution order of the high court of 11 May 2010. The order by
the
SCA granting leave to appeal against the spoliation order predated
that order. Rule 49(11) expressly empowers the high court
in the
exercise of its discretion to direct that its order be carried into
effect pending the appeal. If the high court had itself
granted leave
to appeal it would nonetheless have been free to direct that its
order be carried into effect pending the appeal.
That leave had been
granted by the SCA was thus irrelevant. And, that two judges of the
SCA had formed the view that there were
prospects of the appeal
succeeding was but one factor. But that, in and of itself, could
hardly fetter the high court in the exercise
of its discretion. Nor
did it. In considering the application the learned judge stated:
'In evaluating the submissions made by both counsel, I
am of the view that prospects of success meant that the Respondent(s)
may,
on the face of it, succeed on appeal. It does not mean that the
Respondent(s) will succeed. Rule 49(11) grant[s], in my view, the
Court with t he discretion to direct that the suspended order be
carried into effect pending the decision of the appeal court.
The suspension of my order creates the status quo to
prevail. The status quo is the locking of the gate of an area
enclosed by the
Applicant. In the event the status quo prevails, the
dispute between the parties will remain and may lead to unrests. This
is evident
from correspondence exchanged between parties subsequent
to the Supreme Court of Appeal's order dated 7 April 2010.
I find it in the best interest of Justice to direct that
the "Status" created by my order prevail pending the
outcome
of the appeal court.'
[18] In
[zRPz]Van Der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA
317
(CC), the Constitutional Court had to decide whether different
outcomes in two cases which were materially identical, was
unconstitutional.
The facts, which were described (at para 25) as
‘highly unusual if not unique’ were these: on successive
days this
court made contrary orders in two cases that were
materially identical. They were made by two separate panels of Judges
of this
Court in response to petitions addressed to the Chief Justice
for leave to appeal against orders of the High Court. Goldstone J,
writing for the majority, had this to say (paras 12 and 13):
‘
There is nothing to suggest
that they [the petitions] were not conscientiously considered or that
each panel did not act in good
faith in considering whether there
were reasonable prospects of success on appeal. Such a test permits
of a reasonable difference
of opinion on the same facts, as do all
discretionary tests. There is no suggestion that this test is
unconstitutional.
As O'Regan J pointed out in
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs
and Others
:
“
Discretion
plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular
circumstances
in a fair manner.”
It would seriously diminish the efficacy of this role of
discretion if a decision made pursuant to its exercise bound other
judicial
officers in a court at the same level in the later exercise
of their discretion in subsequent cases.'
It thus appears to me that there can be no room for the application
of the
stare decisis
rule in a situation such as this. (See
Fellner v Minister of the Interior
1954 (4) SA 523
(A); Prof E
Khan ‘Ratio decidendi and divided courts – the passport
case reagitatus’
1955
SALJ
6.)
I should perhaps add that
the learned judge also weighed, as against the prospects of the
appeal succeeding, the prejudice to Amaryllis
and the public
interest, namely that there should be obedience to orders of court
and that people should not be allowed to take
the law into their own
hands (
Kotze v Kotze
1953 (2) SA 184
at 187F). There thus
appears to me to be no warrant for this court to interfere with the
exercise of the high court's discretion
on this score.
As to the third
:
[19] Respect for the authority of the courts is foundational to the
rule of law. Civil contempt is not solely an issue
inter partes
,
but also an issue between the court and the party who has failed to
comply with its order. It is thus as much about vindicating
judicial
authority as it is about vindicating individual rights. In
Fakie
NO v CCII Systems (Pty) Ltd
2006 (4) 326 (SCA) para 41, Cameron
JA stated:
'Once the applicant proves the three requisites (order,
service and non-compliance), unless the respondent provides evidence
raising
a reasonable doubt as to whether non-compliance was wilful
and
mala fide
, the
requisite contempt will have been established. The sole change is
that the respondent no longer bears a legal burden to disprove
wilfulness and
mala fides
on
a balance of probabilities, but need only lead evidence that
establishes a reasonable doubt.'
Here, the three requisites – order, service and non-compliance
– had been established by Amaryllis. GPDSA thus bore
an
evidential burden in relation to wilfulness and mala fides. It sought
to discharge that burden by suggesting:
‘
Our understanding in terms of
the legal advice we obtained was that an application for leave to
appeal suspends the operation of
the order against which leave to
appeal is sought, and particularly the order of 11 May 2010. We
believed the advice was reasonable
and correct.'
But that explanation does not avail GPDSA. For, as Froneman J
observed in
Bezuidenhout v Patensie Sitrus Beherend BPK
2001
(2) SA 224
(E) at 229:
'An order of a court of law stands until set aside by a
court of competent jurisdiction. Until that is done the court order
must
be obeyed even if it may be wrong (
Culverwell
v Beira
1992 (4) SA 490
(W) at 494A-C). A
person may even be barred from approaching the court until he or she
has obeyed an order of court that has not
been properly set aside
(
Hadkinson v Hadkinson
[1952]
2 All ER 567
(CA);
Bylieveldt v Redpath
1982 (1) SA 702
(A) at 714).'
It follows in my view that the contempt was thus established beyond a
reasonable doubt.
[20] In the result and for the reasons given GPDSA’s appeal
must fail. It remains to consider costs. The high court ordered
GPDSA
to pay the costs of the proceedings in that court on the scale as
between attorney and own client. No order for costs issued
against
Messrs Masinga and Mathina. There is no basis for interfering in the
exercise of the high court’s discretion in that
regard. It
follows that that order must stand. As to the costs of the appeal:
all three appellants were represented in this court
and the one below
by the same counsel and attorney. Accordingly, no additional costs
distinct from that of GPDSA have in truth,
been occasioned on appeal
in respect of Messrs Masinga and Mathina. Thus notwithstanding their
success on appeal no warrant exists
for an order of costs in their
favour on appeal.
[21] One final aspect requires comment. In his judgment granting
leave to appeal to this court Mabuse J stated:
'I always adopt the attitude that no one may be a Judge
in his own case. If the court were to believe that the order that it
made
is correct, in my view, the application that come before such a
Judge would be refused on the basis that the Judge would always
think
that the judgment that he has given is right and can therefore not be
challenged. I also believe in the principle that doors
should not be
closed if parties want to litigate to challenge the decision of the
court, let them do so and it should not be taken
personally that if a
Judge gives leave to appeal then it meant that his judgment was wrong
or that the parties who want to challenge
the judgment undermine his
reasoning.
I should therefore think that we should always open the
doors for litigants in order to pursue their rights. In instances
like this
one in particular the court should be inclined to grant
leave to appeal until the issues are fully exhausted. There is no
prejudice
that the other party will suffer or there is before this
court no indication or no argument that if this court were to grant
leave
to appeal the respondent will one way or the other suffer any
prejudice. On that basis I am therefore of the opinion that the
applicant
should be granted leave to appeal ... '
That with respect to the learned judge is not the test. In
R v
Muller
1957 (4) SA 642
(A) at 645E-G, Ogilivie Thompson AJA said:
'From the very nature of things it is always somewhat
invidious for a Judge to have to determine whether a judgment which
he has
himself given may be considered by a higher Court to be wrong;
but that is a duty imposed by the Legislature upon Judges in both
civil and criminal matters. As regards the latter, difficult though
it may be for a trial Judge to disabuse his mind of the fact
that he
has himself found the Crown case to be proved beyond reasonable
doubt, he must, both in relation to questions of fact and
of law,
direct himself specifically to the enquiry of "whether there is
a reasonable prospect that the Judges of Appeal will
take a different
view" (per CENTLIVRES, J.A., in
Rex v
Kuzwayo
,
1949 (3) SA 761
(AD) at p. 765).'
[22] In the result:
(1) The appeal by the first appellant is dismissed with costs.
(2) The appeal by the second and third appellants against paragraphs
1, 3 and 4 of the order of the court below is allowed and
the order
is amended by the deletion of paragraphs 3 and 4 and the substitution
of paragraph 1 with the following:
‘
The rule nisi granted by the court on 28
July 2010 is discharged.'
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: G Shakoane
V
D Mtsweni
Instructed
by:
Dolf
Mosoma Attorneys
Pretoria
Naudes
Attorneys
Bloemfontein
For
Respondent: M P van der Merwe
H
C Janse van Rensburg
Instructed
by:
Tim
du Toit Attorneys
Pretoria
Honey
Attorneys
Bloemfontein