About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2022
>>
[2022] ZAECMHC 9
|
|
Rhweba Butterworth (Pty) Ltd and Another v Mntonga In re: Rhweba Butterworth (Pty) Ltd and Another v Mntonga and Others (5368/2021) [2022] ZAECMHC 9 (3 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 5368/2021
In
the matter between:
RHWEBA
BUTTERWORTH (PTY) LTD
1
st
Applicant
RHWEBA
TRADING 1120
CC
2
nd
Applicant
and
LUBABALO
BROWN MNTONGA
Respondent
In
re:
RHWEBA
BUTTERWORTH (PTY) LTD
1
st
Applicant
RHWEBA
TRADING 1120
CC
2
nd
Applicant
And
LUBABALO
BROWN MNTONGA
1
st
Respondent
SILMA
HAMDULAY
N.O.
2
nd
Respondent
FAMOUS
BRANDS MANAGEMENT COMPANY
3
rd
Respondent
WHIRLPROPS
46 (PTY)
LTD
4
th
Respondent
JUDGMENT
JOLWANA
J:
Introduction.
[1]
On the 14 March 2022 the applicants approached this Court on an
urgent basis seeking an order for the respondent to be found
in
contempt of the court order issued on 21 December 2021. If they
succeed they want him to be committed to imprisonment for a
period of
a month or such other sentence as the court may consider appropriate.
In the event that the court finds that in not complying
with the said
court order the respondent did not act wilfully or mala fide, the
applicants apply, in the alternative, for the respondent
to be
ordered to immediately comply with the said order. Finally, and in
either event they seek an order for the respondent to
pay costs on a
punitive scale as between attorney and client.
[2]
One of the main issues that becomes apparent from the papers is
whether the order which was issued by Griffiths J on 21 December
2021
(the court order) is an interlocutory order or not and/or whether it
is just an interim order. In order to fully understand
that issue and
the non-compliance with the said court order being the only reason
why this application was moved, it is necessary
that the said order
be reflected as it is. It reads:
“
1. That the
applicant’s non-compliance with the provisions of Rule 6 of the
Rules of this Court is condoned and leave is granted
to the
applicants to bring this application as a matter of urgency in terms
of Rule 6 (12) of the Rules of Court.
2. That a rule nisi does
hereby issue calling upon the respondents to show cause, if any on 1
February 2022 at 10h00 or as soon
thereafter as the matter may be
heard why an order in the following terms should not be made final:
2.1 That the first
respondent be required immediately to remove the security guards
placed at Deboinars Pizza, Mthatha Plaza, Shop
39 Mthatha Plaza, 35
Nelson Mandela Drive, Mthatha (“the premises”) on his
instruction, and to hand over the premises/business
to the
applicants, directors, shareholders, employees and/or agents of the
applicants.
2.2 That the first
respondent and its agent, security guards and/or anyone acting on his
instructions, be interdicted and restrained
from:
2.2.1 interfering in any
way whatsoever with the activities, and/or the administration and/or
business of the applicants at the
premises;
2.2.2 intimidating and/or
threatening and/or harassing and/or causing violence and/or
threatening to cause violence to any worker
and/or employee and/or
official and/or supplier and/or agent and/or sub-contractor of the
applicants;
2.2.3 blocking and/or
preventing any agent, director, shareholder and/or employee of the
applicants and/or any subcontractor of
the applicant from entering
into the premises;
2.2.4 disrupting or any
other way being a disruptive presence at or near the premises of the
applicants.
2.3 That there be no
order as to costs against respondents 2 – 4.
2.4 That the first
respondent pays the costs of this application on an attorney and
client scale.
3. That paragraph 2.1 to
2.2 above shall operate as an interim interdict/mandamus pending the
finalisation of the application.
4. Today’s costs
shall be in the cause.”
[3]
The above court order was issued on 21 December 2021, however, it has
what appears to be a typographical error in that it is
dated 21
January 2022. That error is repeated in the date stamp which also
reflects the same date. During the hearing of this application
it was
not disputed that the said court order was issued on 21 December 2021
and it was in fact common cause. On the face of the
court order it is
not reflected that the respondents were legally represented during
the hearing of the matter. However, it was
also common cause during
the hearing of this application that respondent’s counsel was
in fact present when the order was
granted.
[4]
The applicants seek an order on an urgent basis for the first
respondent to be found in contempt of that court order. To this
end
papers were issued on the 14 March 2022 with the matter being
scheduled for hearing on the 22 March 2022 at 9:30. The respondent
was required to file a notice to oppose on or before the 16 March
2022 at 16:00 and at the same date and time, file his answering
affidavit. The papers were served on 15 March 2022 at 14:50. From the
time of service the first respondent would only have almost
exactly
25 hours or one day to the time by which it was required of him to
file a notice to oppose and an answering affidavit.
This time frame
suggests an urgency falling into one of the categories of extreme
urgency to the extent that such a short period
was afforded to the
respondent to file his opposing papers. The question that must follow
is whether the applicants were justified
in truncating the time
frames for the filing of the notice to oppose and the answering
affidavit in the manner in which they did.
I turn now to deal this
issue.
Urgency.
[5]
The applicants deal with urgency in their founding affidavit by
explaining that they were supposed to take over the business
in June
2021 but were prevented from doing so by what they refer to as
baseless applications. They have not received any return
in respect
of the sale of the business since May 2020. They then agreed to cut
their losses with the executrix of the estate following
the death of
the deceased who had purchased the business on certain terms, by
taking the business back. They allege that they suffer
economic loss
on each day that they cannot take control of the business.
[6]
The respondent had filed an application for leave to appeal the above
mentioned court order. The application for leave to appeal
was heard
and dismissed on 23 February 2022. The respondent’s attorneys
shortly indicated that they would be filing a petition
to the Supreme
Court of Appeal for a special leave to appeal within the “next
day or two” but did not do so. They then
indicated that they
would bring an application to stay the execution of the court order
but failed to do so. It became clear after
a few days that the
respondent had no intentions to bring such application. Only then did
the applicants’ attorneys instruct
the sheriff to serve the
court order upon the respondent to prevent him from alleging that the
order was not served. The court
order was served on 3 March 2022 but
the sheriff only furnished the applicants’ attorneys with his
return of service on 10
March 2022. The papers were drafted over a
weekend. Lastly, the applicants allege that the matter is urgent and
it remains urgent
every day that the respondent refuses to comply
with the court order and that they are losing income on a daily basis
whilst the
respondent receives income of a very profitable business
on a daily basis. In the final analysis they allege that they will
not
be afforded substantial redress at a hearing in due course.
[7]
After indicating the time frames provided for in the Uniform Rules of
Court for the filing of documents the applicants allege
that they had
been advised that there are no dates in the opposed motion court roll
before the third term of 2022. Therefore, the
matter may only be
heard in August 2022 by which time they allege that they would have
lost more than a year’s income from
the business. They have no
idea as to the financial position of the respondent but have good
reason to believe that they will not
be able to recoup their losses
from the respondent. This is the summary of all that the applicants
submit are the reasons for urgency
besides the issue of urgency
associated with contempt of court proceedings which they also raise.
I will deal with the urgency
associated with contempt of court
proceedings later herein.
[8]
One of the most common and yet vexing issues that has been receiving
the attention of our courts for decades and still does
is that of
urgency. Our courts have variously explained, stated and restated the
legal position on urgency and what is expected
of the litigants and
their legal representatives in applications moved on an urgent basis.
I do feel that even now some restatement
of the legal position is
warranted as the litigants continue to misapply urgency rules which
are often abused.
[9]
In
Luna
Meubel
[1]
Coetzee J gave the following salutary advice which, although it
should be well known to practitioners, is either misunderstood,
misinterpreted to suit individual practitioner’s needs and
convenience or is often not given heed to. It is commonly and
often
deliberately wrongly interpreted to mean anything that is convenient
and beneficial to the practitioner concerned and his
client when in
fact that is not so and should not be so. Coetzee J said in
Luna
Meubel
:
“
Practitioners
should carefully analyse the facts of each case to determine, for the
purposes of setting the case down for hearing,
whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify the
particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down.”
[10]
The Uniform Rules of Court provide for what the learned Judge
referred to as the “norm”. In terms thereof, from
the
date on which the respondent is served with the papers he has 5 days
within which to file his notice to oppose and another
15 days within
which to file an answering affidavit. The applicants gave the
respondent 25 hours or one day within which to file
a notice to
oppose together with an answering affidavit. This must be juxtaposed
with the twenty days that the respondent was ordinarily
entitled to
according to the norm. There would ordinarily be nothing wrong with
this as long as the applicant makes out a case
for the truncation of
times in the manner in which he stipulates for the filing of the
notice to oppose and the answering affidavit
as well as the date for
the hearing. The applicants in urgent applications should not pay
“mere lip service” to the
old adage of
audi alteram
partem
, but must, depending on the exigencies of each case, give
meaning to it.
[11]
The court order issued on 21 December 2021 is the order which has not
been complied with and which is the basis of this application.
However, it was not served on the respondent during the remainder of
December 2021, the whole of January 2022 and the whole of
February
2022. It was only served some two months and thirteen days later on
the 3 March 2022. The explanation for this very long
delay is that on
22 December 2021 the respondent filed a notice of appeal. It appears
from the papers that the reasons for the
order of the 21 December
2021 were made available on 24 December 2021. The application for
leave to appeal was heard on 23 February
2022 and apparently the
application for leave to appeal was dismissed on that date of the
hearing. The reason for dismissing the
application for leave to
appeal included the fact that the order of the 21 December 2021 was
an interim order and therefore not
appealable. On 24 February 2022
the respondent’s attorneys sent an email to the applicants’
attorneys advising of their
instructions to lodge a petition against
the refusal of the application for leave to appeal with the Supreme
Court of Appeal (the
SCA) for which the respondent had 30 days within
which to file the petition in terms of the rules of that court.
[12]
It is not clear on the papers why, first having decided to wait for
the application for leave to appeal process to be finalized,
the
applicants decided not to await the petition process. There does not
seem to be any rationality for the distinction between
the two
processes to the extent that it was not submitted that a petition
does not ordinarily lead to the suspension of the order
or judgment
appealed against.
Section 18
(1) of the
Superior Courts Act 10 of
2013
provides that:
“
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 decisions of
the
application or appeal.”
[13]
The applicants submit that after the respondent had failed to serve
his petition to the SCA, his attorneys indicated that they
would
bring an application to stay the execution of the order but did not
do so. It is further alleged that it became clear to
the applicants
after a few days that the respondent had no intention of bringing
such an application. Only then did the applicants
instruct their
attorneys to serve the court order. It is unclear what the “few
days” refers to or from when exactly
is it reckoned. However,
the date on which they made the realization that the stay application
was not to be brought is not stated.
It is also this vagueness and
lack of particularity that creates problems in determining urgency.
It is unclear why it was even
necessary that the service of the said
court order should await anything the respondent’s attorneys
said or did. This is
more so that the applicants’ case is that
the court order is not appealable. These are not explained, at least
not cogently
as one would have expected to the extent that reliance
was placed on these issues to make a case for urgency.
[14]
Whatever “few days” means and whenever it was reckoned
which is also not stated as I said earlier, sheriff was
eventually
instructed to serve the order. It is not clear when the sheriff was
instructed as this is not stated in the applicants’
papers. In
any event the order was eventually served on 3 March 2022. In short,
on applicants’ own papers, the respondent’s
application
for leave to appeal was refused on 23 February 2022. However, the
court order of the 21 December 2021 was only served
by the sheriff
after a week on the 3 March 2022. It is not clear what the applicants
were doing from the 23 February 2022. Most
importantly, why they did
not consult with their legal representatives for the purposes of
launching this application instead of
waiting for a petition or even
waiting for a stay application that never materialized. It is unclear
what prompted the later realization
after a few days that the
respondents had no intention to bring the stay application.
[15]
Having served the court order on the 3 March 2022, it is alleged that
the sheriff only provided the applicants’ attorneys
with his
return of service on the 10 March 2022. There are other problems with
the return of service having been allegedly provided
to the
applicants’ attorneys only on the 10 March 2022. These problems
arise because the applicants themselves have not given
an explanation
which only they could give. For instance, it appears that the deputy
sheriff signed the return of service on the
4 March 2022. It must be
accepted from that that as from the 4 March 2022 the return of
service was sitting on the sheriff’s
desk waiting to be
collected. Why it was not collected timeously is not explained. This,
in circumstances where the sole purpose
of serving the court order
was to move this application on an urgent basis.
[16]
Surely if the time frames referred to earlier were to be truncated in
the manner that the applicants did, it was encumbent
upon them to
explain and justify the truncation. After all, being heard on an
urgent basis is not there for the taking, it must
be justified on
rational basis in light of what the ordinary time frames provided for
in the Uniform Rules of Court are and the
exigencies of the case. The
applicants’ attorneys have failed in this regard as it is them,
not the applicants, who know
about the court rules and court
processes. That is why Coetzee J, in
Luna Meubel
put it upon
them and gave them the responsibility to “carefully analyse the
facts of each case” to determine whether
a greater or lesser
degree of relaxation of the rules is required.
[17]
Having received the return of service on the 10 March 2022 the
applicants say that the papers were drafted over a weekend.
The 10
March 2022 was on a Thursday. The drafting of the papers was
therefore, not done on Friday the 11 March 2022 for reasons
that have
not been given. The drafting is said to have happened over a weekend,
presumably on the 12 or 13 March 2022. The papers
were issued on the
14 March 2022 but were only served by the sheriff in the afternoon on
the 15 March 2022 at 14:50. Why it was
only possible to effect
service at that time is not explained. Worse still, the papers having
been issued on the 14 March 2022,
were only emailed to the
respondent’s attorneys on 15 March 2022 at 09:19 the following
morning. It is not explained why
the papers were not or could not be
emailed immediately after they were issued.
[18]
Litigants, especially the applicants in urgent applications must
understand that they have to play open cards with the court
and have
a duty to give a proper explanation if they want the court to leave
whatever else the court is busy with and attend to
their application.
On the 22 March 2022 when the application was heard there were no
less than 13 urgent applications including
this one on the urgent
court roll. The answering affidavit was handed up in court during the
hearing. For the many reasons stated
above, there was justification
for the striking of the matter off the urgent court roll which is
exactly what the respondent’s
counsel was urging me to do.
However, because counsel for the applicants indicated that they had
no intention of filing a replying
affidavit and his heads of argument
were available I decided to hear the matter in full. I allowed the
respondent’s counsel
to file his heads of argument at a later
stage which was done a week or so later on 29 March 2022. Besides,
the application concerns
a contempt of the court order and therefore
striking the matter off the roll would not have been appropriate. In
all those circumstances
and in the exercise of my discretion I heard
the matter in full.
The
history of the matter.
[19]
The history of this matter as well as the history of the contested
issues between the parties is correctly captured, quite
succinctly in
the reasons for the court order of the 21 December 2021 which
Griffiths J made available on 24 December 2021. I will
mention some
of the salient features of the history and/or relationship between
the parties for context as gleaned from the founding
affidavit. I do
so hereunder.
[20]
Miss Onke Mankahla (Onke), Mr Moshe Hector Sohaba (Moshe) and the
late brother of the respondent (the deceased) were members
of the
second applicant which owned a number of business franchises in
Mthatha and Butterworth including Debonairs Mthatha Plaza
(Debonairs). Onke, Moshe and the deceased entered into an agreement
to part ways with the deceased. As a result of that mutual
agreement
the second applicant sold Debonairs to Rhweba Holdings (Pty) Ltd
(Rhweba Holdings) for R1.7 million. Rhweba Holdings
agreed to pay
R2000 a day until the purchase price was paid in full. Until the
purchase price would have been paid in full it was
agreed that
ownership of Debonairs would remain vested in the second applicant.
The deceased, who apparently owned Rhweba Holdings
defaulted with
payments in March 2020 and unfortunately he passed on in May 2020.
[21]
The deceased had appointed Standard Executors and Trustees Ltd to be
the administrators of his estate, presumably in his will.
The second
respondent in the main application was the official nominee of
Standard Executors and Trustees Ltd and was therefore
the executrix
of the deceased’s estate. Moshe and Onke entered into
negotiations with the executrix which led to an agreement
being
reached that the sale agreement in respect of Debonairs would be
cancelled and that the second respondent would transfer
the shares of
Rhweba Holdings to the second applicant. After the said agreement was
reached the first applicant entered into negotiations
with the third
respondent to obtain the franchise rights of Debonairs. An agreement
was reached in this regard and the franchise
for Debonairs was
awarded to the first applicant. The first applicant entered into a
lease agreement with the fourth respondent
for the premises in which
Debonairs is trading. Finally, an agreement was reached with the
executrix for the taking over of the
control and management of
Debonairs with effect from 1 July 2021.
[22]
It was against this background that Griffiths J granted the court
order of the 21 December 2021. In his answering affidavit
the
respondent does not dispute or challenge any of this background which
is a very significant aspect of the whole factual matrix.
Furthermore, it must be noted that the name of the respondent does
not feature anywhere in these undisputed facts, during the life
time
of the deceased and even after his unfortunate demise. The question
therefore, is under what colour of right does the respondent
claim
any interest in the business of the deceased? How does he come into
the picture in all of this? He alludes to some entitlement
to be the
deceased’s residual heir.
[23]
One would have expected to find an explanation, in his own words, in
his answering affidavit. However, the respondent does
not even go
anywhere near trying to place himself in the picture or explain to
the court the rights that he is protecting and the
basis on which he
makes any contentions. He starts his answering affidavit with what he
calls “Answer to the applicants’
version”. However,
his answer does not contain any explanation of who he is in relation
to Debonairs or Rhweba Holdings or
what his interest is. On the
contrary, his answer is nothing more than his contestations regarding
his appeal against the order
of Griffiths J issued on 21 December
2021.
The
court order issued on 21 December 2021.
[24]
The central contention of the respondent is that he cannot be said to
be in contempt of the said court order because it remains
a subject
of an appeal. It is not clear in his answering affidavit if following
the dismissal of the application for leave to appeal
on 23 February
2022, the respondent has since filed a petition with the SCA. His
intentions to do so are however, very clear as
he indicates that his
attorneys in Bloemfontein, the seat of the SCA, have been instructed
to file the petition. The applicants
contend very strenuously that
the court order is not appealable. Because it is not appealable, so
goes the submission, the respondent
should have complied therewith
and not await the finalisation of the appeal process.
[25]
These being contempt of court proceedings, I consider it necessary to
first set out the elements thereof which must be established
beyond
reasonable doubt in order to prove the alleged contempt of the court
order. In
Zuma
[2]
the court explained the elements of contempt of court in the
following terms:
“
As set out by the
Supreme Court of Appeal in
Fakie
and approved by this Court in
Pheko
II
, it is trite that an applicant who alleges
contempt of court must establish that (a) an order was granted
against the alleged contemnor;
(b) the alleged contemnor was served
with the order or had knowledge of it, and (c) the alleged contemnor
failed to comply with
the order. Once these elements are established,
wilfulness and mala fides are presumed and the respondent bears an
evidentiary
burden to establish a reasonable doubt. Should the
respondent fail to discharge this burden, contempt will have been
established.”
[26]
There is no doubt that the court order was granted against the
respondent and he was served with it. In any event, the respondent
is
clearly aware of it and he has failed to comply with it. I do not
intend to analyse these elements and how each of them has
been
established. I will not do so for two reasons. First, the respondent
is not contending that the court order does not exist
or that he has
no knowledge of it. Second, his case is built on his right to be
afforded an opportunity to appeal the said order
which, for that
reason, remains suspended pending the appeal process, as he contends.
On the other hand, the applicants contend
that the provisions of
section 18
(2) afford the respondent no such suspension for the
reason that the court order, being a rule nisi with an interim
relief, is
an interlocutory order, not having the effect of a final
judgment and is therefore not suspended pending appeal.
[27]
It is necessary to set out the provisions of
section 18
(1) and (2).
Section 18
(1) reads:
“
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.”
[28]
What is set out in
section 18
(1) is what the respondent is
contending for. He goes on to argue that
section 18
(2) only deals
with interlocutory orders and not interim orders. In other words, on
the respondent’s contentions, there is
a distinction between
the two and that distinction places an interim order within the ambit
of
section 18
(1) and not
section 18
(2).
Section 18
(2) reads:
“
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.”
[29]
It will be gleaned from subsections 18 (1) and (2) that both of them
refer to what is called a “decision” which
is either
suspended or not suspended depending on whether it has a final
effect. What is a decision? This question was authoritatively
dealt
with in
Zweni
[3]
by Harms AJA as follows:
“
A ‘judgment
or order’ is a decision which, as a general principle, has
three attributes, first, the decision must be
final in effect and not
susceptible of alteration by the Court of first instance; second, it
must be definitive of the rights of
the parties; and, third, it must
have the effect of disposing of at least a substantial portion of the
relief claimed in the main
proceedings. … The second is the
same as the oft-stated requirement that a decision, in order to
quality as a judgment or
order, must grant definite and distinct
relief. …
The
fact that a decision may cause a party an inconvenience or place him
at a disadvantage in the litigation which nothing but an
appeal can
correct, is not taken into account in determining its
appealability
.”
[4]
[30]
It seems to me that the question, denuded of all excess verbiage and
other appendages, is not whether the order of Griffiths
J is
interlocutory or not which is where the applicants and the respondent
are contending differently. The key word used in
section 18(1)
and
(2) is the word “decision” which explains what a judgment
or order is has been explained by Harms AJA in
Zweni
as
indicated above. Is the court order of the 21 December 2021 a
decision? The answer to this question is not far to seek. It is
to be
found in the order itself. Having granted the other prayers,
Griffiths J then made the following order in paragraph 3:
“
That paragraph 2.1
to 2.2 above shall operate as an interim interdict/mandamus pending
the finalisation of the application.”
[31]
I do not understand how the court order of the 21 December 2021,
framed in those terms, can be said to be a decision when the
order
itself makes it clear that it will only operate on an interim basis
pending the finalization of the application. That application
has a
return date and it has not been finalized. The respondent’s
contention that the interim order has effects which are
final in
nature against him is contrary to the legal position espoused in
Zweni
and is, with respect, not only illogical but is also
clearly self-serving. Therefore, the order of the 21 December 2021 is
not
a decision as provided for in both sub-sections 18(1) and (2).
Because is not a decision, it is not suspended pending appeal. The
key word in both subsections is a “decision”. A decision
is as described by Harms AJA in
Zweni.
It must be final in
effect and not susceptible of alteration by the Court of first
instance. It must also be definitive of the rights
of the parties and
it must have the effect of disposing of at least a substantial
portion of the relief claimed in the main proceedings.
That order is
an interim order and the respondent accepts this. Because it is an
interim order it is not definitive of the rights
of the parties and
is therefore not dispositive of a substantial portion of the relief
claimed for the simple reason that when
that application is
determined, the rule nisi might very well be discharged. It is
therefore not a decision as referred to in subsections
18 (1) and
(2).
[32]
The relief claimed in the main proceedings is largely as contained in
the court order. There is no disposing partially let
alone
substantially of that relief in that court order. There is no
contention by the respondent that the court order is somehow
definitive of the rights of the parties nor could such case be made.
This is so because the respondent is entitled to show cause
on the
return day of the rule nisi why that order should be discharged. If
the court finds in his favour the rule nisi might very
well be
discharged. Therefore, even a cursory glance at that court order does
not lend itself to any other interpretation other
than that it is not
a decision as provided for in both subsection (1) and (2).
Is
the respondent in contempt of the impugned court order?
[33]
The applicants have conceded already in their founding affidavit that
this Court may, on the facts of this case, find that
the respondent
is not in contempt of the said court order. This is how the
concession is couched:
“
69. However, the
court may found (sic) that his attorneys wrongly believes (sic) that
the application for leave to appeal to the
Supreme Court of Appeal
suspends the operation of the order of 21 December 2022 (sic) in
spite of the clear provisions of
section 18
(2) of the
Superior
Courts Act. On
the other side they had indicated that they would
bring an application to suspend the operation of the order.
70. There is a
possibility that this Court may find that the respondents (sic)
attorneys is (sic) left under a wrong impression
and the respondent
is putting all his trust in his attorneys and believe (sic) that he
is entitled not to obey the court order
until all his remedies have
been exhausted.”
[34]
This concession is well made, for it would be simply incorrect to
deprive a person of his freedom and liberty which are guaranteed
in
the Constitution and find him guilty of civil contempt and thus pave
a way for his possible incarceration. This, in circumstances
where in
essence his contempt would have arisen from his legal
representatives’ wrong interpretation of the law. They would
have therefore conveyed to him that he did not have to obey the court
order of the 21 December 2021 under the mistaken understanding
that
it is suspended by the appeal process. The presumption of mala fide
or wilfulness under such circumstances cannot be made
nor can he be
expected to discharge the evidentiary burden of establishing
reasonable doubt. He evidently relied on the wrong legal
advice of
those representing him even in these proceedings where his refusal to
comply is, on the papers, clearly based on the
wrong notion that he
does not have to comply with the court order because it is an interim
court order and not an interlocutory
court order. It is encumbent
upon this Court to first explain to the respondent the correct legal
position before he is made to
face the very serious consequences of
civil contempt. After this judgment it would have been a choice for
him to continue to accept
wrong legal advice from his lawyers should
he continue to disobey the court order of the 21 December 2021. Such
conduct, if it
eventuates, will indeed establish wilfulness and mala
fide whose consequences will be for him to be held responsible for
his continued
contempt and can expect no sympathy from the courts.
[35]
As explained in
Zuma
where the Constitutional Court explained the distinction between
coercive and punitive orders, this judgment is also intended to
assist the respondent in understanding the legal position and in
giving him an opportunity to make amends and comply with the court
order without facing consequences of civil contempt. However, if he
continues with his refusal to comply, he will himself have
opened the
doors to his prison cell as he will make himself punishable in
accordance with the law as that will show mala fide and
wilfulness on
his part. The court said in
Zuma
[5]
:
“
I should start by
explaining how the purposes of contempt of court proceedings should
be understood. As helpfully set out by the
minority in
Fakie
,
there is a distinction between coercive and punitive orders, which
differences are “marked and important”. A coercive
order
gives the respondent the opportunity to avoid imprisonment by
complying with the original order and desisting from the offensive
conduct. Such an order is made primarily to ensure the effectiveness
of the original order by bringing about compliance. A final
characteristic is that it only incidentally vindicates the authority
of the court that has been disobeyed. Conversely, the following
are
the characteristics of a punitive order: a sentence of imprisonment
cannot be avoided by any action on the part of the respondent
to
comply with the original order; the sentence is unsuspended; it is
related both to the seriousness of the default and the contumacy
of
the respondent; and the order is influenced by the need to assert the
authority and dignity of the court, to set an example
for others.”
[36]
This is not where this matter is at the moment. It is to be hoped
that now that this judgment makes it clear that the respondent,
Mr
Mntonga is obliged to comply with the court order of Griffiths J
issued on 21 December 2021, he will comply as directed without
delay.
Should he fail to do so the applicants will be entitled to approach
the court on an urgent basis to prove all the elements
of civil
contempt in which case, the court will deal with the respondent in
accordance with the law on civil contempt. That will
have very dire
consequences for him which may include lengthy imprisonment.
Points
in limine.
[37]
This brings me to the points in
limine
raised by the
respondent. The first one must be rejected without further ado as
being unsustainable. There is no need to cite the
Minister of Justice
and Correctional Services where a litigant seeks an order for the
imprisonment of any person for civil contempt.
The Minister simply
has no interest in the matter. In detaining the respondent, the
Minister will be complying with his constitutional
duty to do so.
That he is constitutionally the person responsible for the
imprisonment of offenders does not make him an interested
party in
civil contempt of court proceedings. He simply has no interest in
whether the respondent is imprisoned or not. In this
regard the
respondent’s legal representatives got the legal position
wrong.
Are
contempt of court proceedings urgent?
[38]
The other point in
limine
raised by the respondent is the
issue of urgency. Contempt of court proceedings are, as a general
rule, urgent. The degree of urgency
will always depend on the facts
of each case. I have dealt with how the degree of urgency has been
misapplied by the applicants
to the extent that they gave the
respondent effectively 25 hours or one day to file a notice to oppose
and an answering affidavit.
That degree of urgency was not justified
and was in fact unfair to the respondent as it gave him literally no
time to read the
papers and seek legal advice as explained earlier.
It was, in those circumstances, understandable that the respondent
could not
file their papers on the time frames set by the applicants.
However, none of that derogates from the general rule that contempt
of court orders is an urgent matter and must be dealt with
expeditiously. The submission of the respondent that “there is
nothing urgent in applications to declare a person in contempt of
court” misses the point.
[39]
In explaining why it would be inappropriate to deal with contempt of
court proceedings and treat them like any other motion
court
proceedings and not on an urgent basis, I must again make reference
to the legal position as explained in
Zuma
[6]
in which Khampepe ADCJ, as she then was, writing for the majority
said:
“
Not only is Mr
Zuma’s behaviour so outlandish as to warrant a disposal of
ordinary procedure, but it is becoming increasingly
evident that the
damage being caused by his ongoing assaults on the integrity of the
judicial process cannot be cured by an order
down the line. It must
be stopped now. Indeed, if we do not intervene immediately to send a
clear message to the public that this
conduct stands to be rebuked in
the strongest of terms, there is a real and imminent risk that a
mockery will be made of this Court
and the judicial process in the
eyes of the public. The vigour with which Mr Zuma is peddling his
disdain of this Court and the
judicial process carries the further
risk that he will inspire or incite others to similarly defy this
Court, the judicial process
and the rule of law.
It is not insignificant
that his assaults and his alleged contempt are ongoing and
relentless, as this underscores urgency. In
Protea Holdings
,
the Court said that “if there was no continuing contempt of
court … then the hearing of this application as a matter
of
urgency in the Court vacation would not be justified”. It held
that –
‘
the element of
urgency would be satisfied if in fact it was shown that [the]
respondents were continuing to disregard the order
…. If this
be so, the applicant is entitled, as a matter of urgency, to attempt
to get the respondents to desist by the
penalty referred to being
imposed.’
A similar point was made
in
Victoria Park Ratepayers’ Association
, in which it
was stated that -
‘
[c]ontempt 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 wilfully 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 that case, the Court
went further to state that –
‘
it is not only the
object of punishing a respondent to compel him or her to obey an
order that renders contempt proceedings urgent:
the public interest
in the administration of justice and the vindication of the
Constitution also render the ongoing failure or
refusal to obey an
order a matter of urgency. This, in my view, is the starting point:
all matters in which an ongoing contempt
of an order is brought to
the attention of a court
must
be dealt with as expeditiously as the circumstances and the dictates
of fairness allow.
’
[7]
[40]
In light of this legal position as expounded at different times and
in different matters in our courts and confirmed recently
in
Zuma
,
the submission that this matter should be struck off the urgent roll
is unsustainable. To do so would not only be incongruous
with the
above stated legal position. It would also lead, inevitably, to the
wanton disregard of court orders until some lose purpose
and meaning,
thus causing chaos and the unravelling of our constitutional
framework which is based on the rule of law. Compliance
with court
orders is an integral part of the rule of law and a highly crucial
one. In all these circumstances the alternative prayer
in the notice
of motion must succeed. The order of Griffiths J issued on 21
December 2021 is not suspended pending any appeal processes.
It must
be complied with as soon as possible.
The
costs.
[41]
A punitive costs order which the applicants have asked for against
the respondent would not be appropriate where it is accepted
that he
might very well be acting on the wrong legal advice of his legal
representatives. In the exercise of my discretion an ordinary
order
for costs on a scale as between party and party is the most
appropriate order for costs in the circumstances.
The
result.
[42]
In the result the following order will issue:
1.The
respondent, Mr Lubabalo Brown Mtonga is directed to immediately
comply with the court order of Griffiths J issued on 21 December
2021
and must do so not later than 3 days from the date of service of this
court order.
2.
This court order must be served together with the court order
referred to in 1 above which was issued on 21 December 2021 upon
the
respondent and upon the manager or person in charge at Debonairs
Pizza, Mthatha Plaza or any responsible employee thereat.
3.The
respondent is ordered to pay the costs of this application on a scale
as between party and party.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicants: D.C. BOTMA
Instructed
by: GRAVETT SCHOEMAN INC.
c/o
BNI ATTORNEYS
MTHATHA
Counsel
for the respondent: S.G. ZWANE
Instructed
by: MNDIYATA B.D. ATTORNEYS
c/o
MAQAMBAYI ATTORNEYS
MTHATHA
Date
Heard : 22
March 2022
Date
Delivered : 03 May 2022
[1]
Luna
Meubel Vervaardigers v Makin and Another
1977
(4) SA 135
(WLD) at 137 E-F.
[2]
Secretary
of the Judicial Commission of Enquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
2021
(5) SA 327
(CC) para 37.
[3]
Zweni v
Minister of Law and Order
1993
(1) SA 523
(A) at 532 J – 533A.
[4]
My underlining.
[5]
Zuma
note 2 supra para 47
[6]
Zuma
note 2
supra paras 30 – 33.
[7]
My underlining