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[2021] ZAGPPHC 103
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Salie-Hlope v Samuels (5254/2013) [2021] ZAGPPHC 103 (2 March 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
02-03- 2021
Case
Number.:
5254/2013
In
the matter between:
GAYAAT
SALIE-HLOPHE
Applicant
and
ADRIAN
JOHN
SAMUELS
Respondent
JUDGMENT
KUBUSHI
J
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
Pursuant to an urgent application launched by the applicant, Justice
Mudau granted an urgent
order against the respondent on 4 December
2020. In the said order it was ordered that:
1.1.
The matter is heard as a matter of
urgency.
1.2.
The respondent shall comply with the
order of Justice Samela of 29 July 2013 by making payment to the
applicant, by depositing same
into her attorneys trust account,
Standard Banka (Rosebank), Account name: Thomson Wilks Inc, account
number [….], branch
code 004305, of the sum of R138 413, 90
(One Hundred and Thirty-Eight Thousand Four Hundred and Thirteen Rand
and Ninety Cents),
by no later than 17h00 on Friday 18 December 2020.
1.3.
Failing compliance with the provisions
of paragraph 2 hereinabove the applicant is granted leave to set the
matter down again, on
no less than 48 hours' notice to the
respondent, for an order that the respondent be held to be in
contempt of the above Honourable
Court and a warrant be issued for
the arrest of respondent and he be committed to imprisonment for a
period to be determined by
the above Honourable Court.
1.4.
The respondent shall pay the applicant's
costs on a party and party scale.
[2]
I am informed that Justice Mudau provided reasons for the urgent
order on 14 December 2020
transmitting same to the parties
electronically.
[3]
The applicant’s submission is that the respondent failed to
make payment in the amount
of R138 413, 90 (One Hundred and
Thirty-Eight Thousand Four Hundred and Thirteen Rand and Ninety
Cents), or any payment at all
by 17h00 on Friday 18 December 2020 as
ordered by Justice Mudau in the order as set out in paragraph [1] of
this judgment.
No reasons were provided for the respondent’s
failure to adhere to the court order.
[4]
The respondent having failed to comply with the order of Justice
Mudau, and by implication
that of Justice Samela, it is contended
that he is in contempt of the said court order. In pursuance of
paragraph 3 of the order
of Justice Mudau, the applicant has filed a
supplementary affidavit seeking this court to make an order that the
respondent be
held to be in contempt of the court order of Justice
Samela and a warrant be issued for the arrest of respondent and he be
committed
to imprisonment for a period to be determined by this
court.
[5]
In terms of paragraph 3 of Justice Mudau’s order on failure of
the respondent to comply
with the provisions of paragraph 2 of that
order, the applicant was granted leave to approach the court for
relief and to set the
matter down again, on no less than 48 hours'
notice to the respondent.
[6]
The parties agreed on 27 November 2020 that service of all processes
will take place via
email. Accordingly, the supplementary affidavit
pertaining to this hearing was served on the respondent’s
attorneys of record
on Wednesday, 24 February 2021 at 13h05, via
email as agreed between the parties. The respondent’s attorneys
of record confirmed
receipt on the same date at 14h04.
[7]
The matter appears before me unopposed as the respondent has not
filed any answering affidavit
to the applicant’s supplementary
affidavit.
[8]
The respondent did not file an answering affidavit because on
22
February 2021 he received sudden and unexpected news of his sister’s
terminal illness and imminent death which made him not
able to
concentrate on the application. When he received the message from his
attorneys of record that the supplementary affidavit
has been served,
he immediately instructed them to request a postponement of the
matter which was flatly refused by the applicant.
[9]
The respondent has, as a result, filed a substantial application for
the postponement of
the matter hopelessly out of time on the morning
of the hearing of the matter. The respondent does not state why it is
that the
application was filed only on the morning of the hearing
when he had been aware as early as 24 February 2021 that the
applicant
was going to oppose the postponement. There is, also, no
application for condonation for such late filing.
[10]
The respondent has always been aware that these proceedings will be
brought on short notice as the
applicant was in the order granted on
4
December 2020 granted leave to approach the court on not less than 48
hours’ notice to him.
[11]
The respondent seeks the postponement on the ground that the
application brought by the applicant is
ill conceived on the basis
which includes, amongst others, that:
11.1
a substantial amount of the monies claimed are not due and payable to
the applicant, in terms of the order
relied on by the applicant;
11.2
following on from the above, the applicant lacks
locus standi
to bring this application; and
11.3
the application is an abuse of legal process as the monies owed are
far less than the amount claimed. The
admitted small arrears were,
according to the respondent, occasioned by the adverse effects of the
COVID pandemic which severely
affected his practice.
[14]
The grounds raised by the respondent simply misses the point of the
application. In accordance with
the court order of Justice Mudau
granted on
4 December 2020 the respondent was ordered to pay to the applicant an
amount of
R138 413, 90 (One Hundred and
Thirty-Eight Thousand Four Hundred and Thirteen Rand and Ninety
Cents), by no later than 17h00 on
Friday 18 December 2020. The
respondent concedes in his papers that not all the amount has been
paid
.
[15]
What the respondent does not understand is that in failing to pay the
full amount of
R138 413, 90 (One Hundred and
Thirty-Eight Thousand Four Hundred and Thirteen Rand and Ninety
Cents), by no later than 17h00 on
Friday 18 December 2020, he
contravened the court order and is, in that sense, in contempt of the
court order.
[16]
The respondent’s proposition that the
small
arrears that are outstanding were occasioned by the adverse effects
of the COVID pandemic which severely affected his practice,
does not
assist his case. At the time when the COVID pandemic was
declared a national disaster which occasioned the lockdown
in the
country, he was already in contravention of the court order having
not paid the full amount he was ordered by the court
to pay to the
applicant.
[17]
The respondent, having not paid the full amount as ordered, remains
in contempt of the court order.
The application for postponement
will, as such, not succeed as the grounds raised by the respondent
will not avail him in the main
application.
[18]
The court in
Tasima
(Pty) Ltd and Others v Department of Transport and Others
,
[1]
the court held that:
"(18)
Civil contempt is the wilful and
mala fide
refusal or failure to comply with an order of court.
This was confirmed in
Fakie NO v CCll Systems (Pty) Ltd
2008
(4) SA 326
(SCA) para 9.
Fakie
also held that whenever
committal to prison is sought, the criminal standard of proof applies
(para 19). A declarator of contempt
(without imprisonment) and a
mandatory order can however be made on the civil standard (see
Fakie
para 42). The applicant for a committal order must establish (a) the
order, (b) service or notice of the order; (c) non- compliance
with
the terms of the order and (d) wilfulness and
mala fides
,
beyond a reasonable doubt. But, once the applicant has proved (a),
(b) and (c), the respondent bears the evidentiary burden in
relation
to (d) (
Fakie
para 42). Should the respondent therefore fail
to advance evidence that establishes reasonable doubt as to whether
his or her non-compliance
was wilful and
mala fide
, the
applicant would have proved contempt beyond a reasonable doubt (
Fakie
paras 22-24)".
[19]
It is the applicant’s submission that the respondent should be
held in contempt of Justice Samela’s
order of 29 July 2013, in
that: he was aware of the order; he failed to comply with the order
in that he did not pay the applicant
the sum of R138 413, 90 (One
Hundred and Thirty-Eight Thousand Four Hundred and Thirteen Rand and
Ninety Cents), as he was directed
to pay, which failure was done
wilfully and
mala fide
.
[20]
The applicant submits that in an attempt to avoid having to proceed
with the contempt application,
she instructed the sheriff of the High
Court to execute the re-issued writ for the same arrears as
stipulated in the urgent order,
as a matter of urgency.
[21]
The sheriff, I am told, experienced serious difficulties in gaining
access to the respondent's property
and was thus not able to execute
the writ until 20 January 2021. The sheriff's
return of service includes an
inventory listing the movables that
were eventually attached, in the amount of R19 000 (Nineteen
Thousand Rand), but the movables
are said to be the subject of an
interpleader application.
[22]
The sheriff was instructed to return to the respondent's premises to
locate and attach the respondent's
motor vehicle which the applicant
had ascertained that it belonged to the respondent. The sheriff
provided a return of service
on 11 February 2021 indicating that his
further attendances at the premises in an effort to locate the motor
vehicle were unsuccessful
as the motor vehicle could not be found.
The sheriff further noted that the respondent, in an affidavit
provided to him, indicated
that the motor vehicle had been sold.
Despite such a sale, no payment was made to the applicant.
[23]
It is said that in an affidavit the respondent, without attaching the
sale agreement, states under
oath that while he remains the
registered owner of the motor vehicle, he is no longer the legal
owner thereof as it has been sold.
No further details of the sale are
provided, save to state that the respondent has not been in
possession of the motor vehicle
since 17 December 2020. It is
the applicant's contention that the respondent is, in this regard,
wilfully and in complete
disregard of this court's order, evaded
service by the sheriff in order to ensure that his asset could be
dissipated prior to the
expiry of the period within which he was due
to make payment to the applicant for arrear maintenance.
[14]
The applicant contends further that the respondent sold an immovable
property which he held as an investment
to his cousin for an amount
of R550 000 (Five Hundred and Fifty Thousand Rand). According to
the applicant, the respondent
did this as a flagrant attempt to
ensure that the property could not be attached to satisfy his legal
obligations to his children
in terms of the court order. The children
in no way benefited from the proceeds of this sale.
[25]
The applicant submits that the respondent's actions can only be seen
as a wilful and
mala fide
attempt to escape the consequences
of the court order and further to hamstring the applicant's attempts
to enforce the court order
against him.
[26]
I am satisfied that the applicant has made out a case for the relief
she seeks in this matter. The
respondent is well aware of the order
of court granted on 29 July 2013 directing him to pay a sum of R138
413, 90 (One Hundred
and Thirty-Eight Thousand Four Hundred and
Thirteen Rand and Ninety Cents), to the applicant. He failed to
comply with this order
and another court order was granted against
him on 4 December 2020. The respondent’s disobedience, as set
out in this judgment,
is clearly wilful and
mala
fide
. An
order should be made out directing that the respondent be held in
contempt of court and a warrant be issued for his arrest
and he be
committed to imprisonment for a period of three (3) months.
[17]
Consequently, the following order is made:
1.
The application for
postponement is dismissed.
2.
The respondent, Mr
Adrian John Samuels, is declared to be in contempt of Justice
Samela’s order of 29 July 2013.
3.
The respondent is
committed to a period of three (3) month's imprisonment.
4.
The Registrar of
this court is directed to issue a warrant of arrest in respect of the
respondent, which warrant shall be effective
15 days from date of
this order.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT,
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant’s
Counsel
: Adv. B. Hack
Appellant’s
Attorneys
:
Thomson Wilks Incorporated
Respondent’s
Counsel
:
Adv. J. Van Der Schyff
Respondent’s
Attorneys
:
NSW Inc. Attorneys
Date
of hearing
: 02 March 2021
Date
of judgment
: 02 March 2021
[1]
[2016] 1 All SA 465
(SCA).