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[2017] ZASCA 35
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Cathay Pacific Airways Ltd and Another v Lin and Another (260/2016) [2017] ZASCA 35; [2017] 2 All SA 722 (SCA) (29 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 260/2016
In
the matter between:
CATHAY
PACIFIC AIRWAYS LTD
FIRST
APPELLANT
SHIRLEY
JONES
SECOND
APPELLANT
and
HAI
LIN
FIRST
RESPONDENT
RUIHONG
WENG SECOND
RESPONDENT
Neutral
Citation:
Cathay Pacific Airways &
another v Lin & another
(260/2016)
[2017]
ZASCA 35
(29 March 2017)
Coram:
Maya AP and Majiedt and Van der Merwe JJA and
Molemela and Gorven AJJA
Heard:
9 March 2017
Delivered:
29 March 2017
Summary:
Practice – urgent application – whether
court order issued orally only was effective – whether there
was proper
notice and service to affected parties –
contempt of court – whether the requirements for contempt of
court were
proved beyond reasonable doubt
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Spilg J sitting as
court of first instance):
1
The appeal against the convictions of civil contempt of court is
upheld with costs, including the costs of two counsel.
2
The orders granted by Spilg J on 11 November 2014, and 14 October
2015 holding the appellants in contempt of court and imposing
sentence upon them are set aside and replaced with an order in the
following terms:-
‘
(a)
The application to hold the third respondent and Ms Shirley Jones in
contempt of court is dismissed.
(b)
The applicants are directed to pay the third respondent’s
costs.’
3.
The appeal against the order in the counterapplication is upheld in
part by substituting the order of Spilg J with the following
order:
‘
The
counterapplication is dismissed with costs.’
JUDGMENT
Majiedt
JA (Maya AP and Van der Merwe JA and Molemela and Gorven AJJA
concurring)
INTRODUCTION
[1]
Judges wield enormous power in their courts. Judges decide, sometimes
conclusively, the rights and obligations of the parties
before them.
They are independent, subject only to the Constitution and the law,
which they are constrained to apply impartially
and without fear,
favour or prejudice.
[1]
But
these powers must be exercised with great responsibility and with
abundant caution. The overriding consideration in every matter
must
indubitably be the interests of justice. The blindfolded Lady Justice
balancing the scales in her left hand and holding a
sword in her
right hand personifies the moral force of justice. While all three of
these attributes of our system of justice come
to the fore in this
matter, it is the balancing of the scales of justice that is
paramount.
[2]
This appeal concerns contempt of court orders made against the
appellants by Spilg J in the Gauteng Local Division of the High
Court, Johannesburg. The learned Judge found the appellants, Cathay
Pacific Airways Limited (Cathay Pacific) and Ms Shirley Jones,
to
have acted in contempt of orders granted in that court by Wright J.
Four orders were made by Wright J in a period of one week.
This
appeal is with the leave of this court.
THE
ISSUES
[3]
The main issues for determination are:
(a)
under what circumstances is a court empowered to grant an order made
telephonically and how should such an order be recorded
and
served effectively so that it comes to the notice of affected parties
and is capable of ascertainment;
(b)
whether the respondents had discharged the onus of proving that the
appellants had been duly cited in the proceedings and that
the court
orders had been properly brought to their knowledge;
(c)
the liability for contempt of court of employees of a company in
respect of an order granted against their employer, where such
employees had neither been cited as a party nor an order granted
against them.
THE
FACTS
[4]
The factual matrix is central to the determination of the issues and
as such requires extensive narration. The facts are largely
common
cause and, to the extent that they were in issue, the well-known
Plascon-Evans
[2]
approach should have been applied. The facts relevant to the
determination of the issues are as follows. The respondents, Mr Hai
Lin and his spouse Ms Ruihong Weng, who are Chinese citizens, had
been granted permanent South African residency status. They reside
in
Umkomaas, Kwa-Zulu-Natal. They have three children, Xuefeng, Zhengyu
and Lili Lin (the children) aged 19, 15 and 14 respectively.
At the
time,the children had also received permanent residency status.
During the evening of 25 July 2014, the three children landed
at OR
Tambo International Airport on board a Cathay Pacific flight from
Hong Kong. The eldest child, Xuefeng, was in control of
his two
younger siblings. On presenting themselves to the immigration
authorities at the airport, the two younger children, both
of whom
were still minors at that time, were refused entry into the country.
This refusal was based on the fact that they did not
appear on the
computer system of the Department of Home Affairs (the Department),
which was the second respondent in the court
a quo.
[5]
Notices of refusal of entry were issued by the Department in respect
of all three children. As far as Zhengyu and Lili were
concerned, the
notices stated that they were illegal foreigners on the basis that
they were in possession of fraudulent permanent
residency permits. In
respect of Xuefeng, the notice declared that he was an illegal
foreigner since he had accompanied his two
siblings who were in
possession of the fraudulent permits. The notices were issued in
terms of s 34(8) of the Immigration Act 13
of 2002 (the Act), which
reads as follows:
‘
(8)
A person at a port of entry who has been notified by an immigration
officer that he or she is an illegal foreigner or in respect
of whom
the immigration officer has made a declaration to the master of the
ship on which such foreigner arrived that such person
is an illegal
foreigner shall be detained by the master on such ship and, unless
such master is informed by an immigration officer
that such person
has been found not to be an illegal foreigner, such master shall
remove such person from the Republic, provided
that an immigration
officer may cause such person to be detained elsewhere than on such
ship, or be removed in custody from such
ship and detain him or her
or cause him or her to be detained in the manner and at a place
determined by the Director-General.’
[6]
In terms of the declaration issued to the master of the ship under s
34 (8) above, Cathay Pacific was instructed to transport
the children
back to Hong Kong on the next available flight. That flight was
Cathay Pacific flight number CX748 and was due to
leave for Hong Kong
at 12h30 the following day, 26 July 2014. The respondents became
aware of the children’s plight on that
Friday evening (25 July
2014) and on the following day instructed an attorney, Mr Ashraf
Mohamed Essop, to assist in the matter.
Shortly before 12 noon, Mr
Essop telephoned Wright J (who was the Judge on urgent duty on that
day) and conveyed to him the situation
regarding the children. Wright
J summarily issued what is referred to in the papers as a ‘telephonic
interdict’ (the
first order). The contents of the first order
were conveyed telephonically at approximately 12 noon on 26 July 2014
by Mr Essop
to one Mr Mashoene, who was in the Cathay Pacific office
at the airport at the time.
[7]
In terms of the first order, Cathay Pacific was interdicted from
boarding the two younger children on the flight. It will be
recalled
that the flight was scheduled to depart at 12h30 on that same day.
The telephonic instruction to Mr Mashoene was that
Cathay Pacific
should not board the two children on the flight for Hong Kong. He was
informed further that there was a court order
to that effect. At that
time Mr Mashoene, who was employed not by Cathay Pacific but by
Menzies Aviation (Pty) Ltd as a lost property
agent, was in the
Cathay Pacific office handling telephone calls and enquiries relating
to lost baggage. In this regard Menzies
Aviation acts as an agent for
Cathay Pacific.
[8]
In response to the telephonic instruction, Mr Mashoene informed Mr
Essop that he had no control over the matter, but that he
would refer
the matter to the employees of Cathay Pacific. To this end, Mr
Mashoene conveyed the instruction telephonically to
Ms Zelda Swart,
employed by Cathay Pacific as an airport service officer.
Importantly, Ms Swart was not informed by Mr Mashoene
that there was
a court order prohibiting the children from boarding the flight. Her
attitude was that Cathay Pacific was enjoined
by law to give effect
to the Department’s instruction under s 34(8) of the Act to
remove the children from South Africa.
The telephone conversation
between Mr Mashoene and Ms Swart occurred while the latter was at the
boarding gate from which passengers,
including the children, were
boarding flight CX748 which was departing for Hong Kong. In the event
the children left on that flight
for Hong Kong at 12h30 on 26 July
2014.
[9]
At approximately 13h15 that same day, Mr Essop telephonically
conveyed to Ms Swart the same instruction as he had conveyed earlier
to Mr Mashoene. Ms Swart’s response was that she was indeed
aware of the matter by virtue of Mr Mashoene’s earlier
telephone call, but that she had been legally bound to adhere to the
Department’s instruction and that consequently, the
children
had left for Hong Kong on flight CX748. She further explained to Mr
Essop that Mr Mashoene was simply a lost property
agent and that as
such had no authority to enforce a telephonic order that the minor
children should not board the aircraft.
[10]
Mr Essop also sought the assistance of the Department by engaging in
a telephonic conversation with Adv Deon Erasmus, the Department’s
Chief Director of Legal Services. Upon being informed by Mr Essop of
the order granted by Wright J, Adv Erasmus responded that
he could do
nothing to prevent the children from being loaded and that he
considered the matter to be out of his hands. Subsequently,
Mr Essop
sought to extract an agreement from Ms Swart that the children would
be returned to Johannesburg on the next available
flight from Hong
Kong. Ms Swart indicated in response that, absent any authority from
her superiors and in the face of the Departmental
instruction, she
was unable to accede to such a request.
[11]
Shortly thereafter, at 14h49 on 26 July 2014, Wright J telephoned Ms
Swart and informed her that he intended to order the return
of the
children from Hong Kong on the following Monday, 28 July 2014. Wright
J requested that Ms Swart accede to such an order
on behalf of Cathay
Pacific. Ms Swart declined once more to agree to such an order,
citing her lack of authority. She suggested,
instead, that Wright J
take the matter up with her manager, Ms Shirley Jones, the second
appellant in this appeal. Ms Swart declined
to furnish Wright J with
Ms Jones’s cellular phone number but undertook to request Ms
Jones to contact the learned Judge.
The latter is alleged to have put
Ms Swart to terms, after which he told her to revert to him within
two minutes, failing which
he would issue an order. In the event, Ms
Swart was unable to locate Ms Jones and when Ms Swart conveyed this
telephonically to
Wright J at around 14h55, the learned Judge
indicated that unless he had heard again from Ms Swart within five
minutes, he would
issue an order, a draft whereof was subsequently
sent to Ms Swart by e-mail. An incorrect e-mail address was,
however, used
in transmitting the draft order. The e-mail was sent to
an @cathypacific.com address, instead of to an @cathaypacific.com
address.
The second order was made shortly thereafter at around
15h20.
[12]
In providing the written reasons for the second order, Wright J
outlined the above events in respect of both the first order
(the
‘telephonic interdict’) and the second order. In broad
terms, the learned Judge confirmed that:
(a)
he had issued the first order at 12 noon telephonically over his cell
phone in conversation with Mr Essop;
(b)
that he had been informed thereafter at about 13h00 by Mr Essop that
the flight had left at 12h30 with the children on board,
[3]
notwithstanding the order having been conveyed to Mr Mashoene by both
Mr Essop and Ms Mlaba, the Judge’s secretary;
(c)
he had engaged in the conversation with Ms Swart narrated above, and
that since no response had been forthcoming from neither
Ms Swart nor
Ms Jones, he had issued the second order.
It
is necessary to briefly revert to these written reasons at a later
stage. It will suffice to emphasize that the written reasons
constitute the only written recordal of the first order. The order
itself had never been reduced to writing.
[13]
The terms of the second order were as follows:
‘
1.
The third respondent, [Cathay Pacific] is to return to OR Tambo
International Airport the children, Zhengyu Lin (with date of
birth
18 August 1999 and passport number G34605379) and Lili Lin (with date
of birth 22 November 2000 and passport number G34605382)
on the first
available Cathay Pacific flight from Hong Kong to OR Tambo
International Airport.
2.
The first and second respondents are ordered to admit the children to
South Africa.
3.
The first and second respondents are interdicted from deporting the
children unless the first and second respondents have a court
order
to that effect.
4.
The first, second, fourth and fifth respondents are ordered to hold
the children at the fourth respondent’s holding facility
at OR
Tambo International Airport until:
4.1
There is a court order to the contrary or
4.2
They are released into the custody of the applicants at the option of
the first and second respondents.
5.
The respondents are to allow the children to be visited by the
applicants and the applicant’s legal practitioners immediately
on the children’s arrival at OR Tambo International Airport.
6.
This case is postponed to 14H00 on Monday 28 July 2014 in front of
Wright J.
7.
The second to fifth respondents are to bring the children to court
for the hearing at 14H00 on Monday 28 July 2014 before Wright
J, High
Court Building, corner Pritchard and Kruis Streets, Johannesburg,
Court 9F.
8.
The question of costs is reserved.’
[14]
The second order was purportedly communicated to Cathay Pacific via
an e-mail from the learned Judge’s chambers. As with
the draft
order earlier, the order was sent to a ‘@cathypacific.com’
address, instead of to one with the suffix ‘@cathaypacific.com’.
This error abounds in the papers outlining both the Reasons for
Judgment and the subsequent contempt application. The effect of
the
misspelling of the email address is that neither the draft second
order nor the order itself came to the knowledge of Cathay
Pacific
until the third order was served on it. This has important
consequences for the contempt of court convictions and reference
will
be made to it in due course. It also bears mention that the second
appellant, Ms Jones, had not been cited as a party in the
second
order, nor was she cited in any other order issued by Wright J.
[15]
There was no appearance by Cathay Pacific in court before Wright J on
28 July 2014 at 14h00. This non-appearance was caused
by its lack of
knowledge of the second order due to the circumstances explained
above. On 28 July 2014 Wright J issued the third
order which was
similar to the terms contained in the second order, save for
the following: it also referred to the
eldest child, Xuefeng,
after it had become apparent that he too had also been returned to
Hong Kong on flight CX748; it also
included a further
order directing Cathay Pacific ‘to return the three children to
OR Tambo International Airport without
asking for payment but subject
to Cathay Pacific’s right later to institute legal proceedings
for the recovery of any money
which Cathay Pacific considers payable
to it’; lastly, the matter was postponed to 10h00 on
Friday 1 August 2014 before
Wright J and the question of costs was
reserved.
[16]
On the following day, 29 July 2014, Mr Essop delivered a hard copy of
the Reasons for Judgment as well as the third order from
the previous
day to Ms Jones, who refused to sign an acknowledgment of receipt. It
became common cause, however, that on that date
Cathay Pacific for
the first time acquired knowledge of the existence and contents of
the first three orders.
[17]
Cathay Pacific did not appear before Wright J on 1 August 2014. I
will advert to its reasons for that non-appearance shortly.
On that
date Wright J granted the fourth order, directing Cathay Pacific to
pay the respondents’ costs of the proceedings
of 26 July 2014,
28 July 2014 and 1 August 2014 on an attorney and client scale.
Written reasons for that order form part of the
record. They merely
repeat the events which gave rise to the first three orders and set
out the terms of the third and fourth orders.
[18]
The respondents launched an urgent application after the fourth order
had been granted. They sought an order holding the appellants
and Mr
Mashoene in contempt of the court orders issued by Wright J. A
striking feature of the application is that neither Ms Jones
nor Mr
Mashoene had been cited as parties to the contempt proceedings.
[19]
The contempt application served before Spilg J on 15 August 2014. The
learned Judge issued a rule nisi returnable on 9 September
2014. In
terms of the rule nisi the appellants and Mr Mashoene were called
upon to show cause on 9 September 2014 why they should
not be held in
contempt of the orders granted by Wright J on 26 and 28 July 2014.
[20]
The appellants opposed the contempt application and issued a
counterapplication to have the first, second and third orders
by
Wright J, or parts thereof, declared null and void and set aside.
They also sought to have the punitive costs order granted
by Wright J
on 1 August 2014 set aside. Spilg J found the appellants in contempt
of the court orders and he dismissed the counterapplication.
Cathay
Pacific was found to be in contempt of the first, second and third
orders and Ms Jones was found in contempt of the second
and third
orders. No such finding was made against Mr Mashoene as Spilg J ‘was
unable to find that Mashoene acted wilfully
since he was obliged to
obtain instructions from and was under the authority of Swart’.
[21]
It is necessary to highlight the following:
(a)
No notice of motion nor any affidavit had ever been filed in any of
the proceedings before Wright J from which the first, second,
third
and fourth orders had emanated.
(b)
The first order had never been reduced to writing – the only
recordal thereof is to be found in the Reasons for Judgment
of 28
July 2014 after the second order had been made.
(c)
The first and second orders had never been served on the appellants
as the e-mail addresses
used to
transmit the second order were erroneous, as indicated above.
(d)
The first time that the appellants became aware of the orders made by
Wright J was on 29 July 2014, when Mr Essop had delivered
a hard copy
to Ms Jones at the Cathay Pacific offices.
(e)
Ms Jones had not been cited as a party in the contempt proceedings
nor in the proceedings before Wright J.
[22]
In relevant part the order made by Spilg J reads as follows:
‘
1.
The Third Respondent [Cathay Pacific] is held to be in contempt of
the court orders granted on 26 July 2014 by Wright J under
case
number 2014/22434 in that;
a.
it boarded the applicants’ two minor children, Zhengyu and Lili
onto flight CX748 and did not disembark them despite the
interdict
preventing it from boarding the said children,
b.
it did not return the said children to OR Tambo International Airport
on a Cathay Pacific flight departing from Hong Kong despite
the
second order granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014.
2.
The Third Respondent is held to be in contempt of the court orders
granted on 28 July 2014 by Wright J under the said case number
in
that;
it
did not return the applicant’s eldest child Xuefeng to OR Tambo
International Airport on a Cathay Pacific flight departing
from Hong
Kong despite the order granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
3.
Ms Shirley Jones is held to be in contempt of the second court order
granted on 26 July 2014 and the order granted on 28 July
2014 by
Wright J under the said case number in that;
she
did not cause Cathay Pacific to return the applicant’s three
children to OR Tambo International Airport on a Cathay Pacific
flight
departing from Hong Kong despite the orders granted to that effect;’
The
learned Judge made further orders dismissing the counterapplication,
ordering Cathay Pacific to pay the costs of both the contempt
application and the counterapplication on the attorney and client
scale and stood the sanctions imposed on the appellants (the
payment
of fines) over until 11 December 2014.
THE
ANSWERING AFFIDAVIT
[23]
Cathay Pacific’s answering affidavit in the contempt
proceedings was deposed to by Mr Rakesh Raicar, its South African
country manager. He had been appointed to that position on 18 August
2014, ie after the orders had been made by Wright J and after
the
rule nisi had been issued by Spilg J. According to Mr Raicar, upon
becoming aware of the case, he immediately consulted the
airline’s
attorneys. Prior to his appointment the stance adopted by Cathay
Pacific was that it was not bound by the orders
granted, since it had
merely carried out instructions issued by the Department. He hastened
to add that that did not mean that
Cathay Pacific was inclined to
disobey court orders but that equally, it was obliged to adhere to
the immigration laws of the various
countries it operated in. The
airline’s attorneys advised him that the court orders were in
fact null and void and should
never have been issued in the first
place. This advice appears to have been based on the judgment of this
court in
Motala
.
[4]
[24]
Mr Raicar narrated the facts known to him from the airline’s
perspective and elaborated on his assertion that, as advised,
the
orders were null and void. He motivated why the non-compliance by the
appellants and Mr Mashoene was not wilful. Mr Raicar
concluded by
asking that the rule be discharged with costs. He also asked that, in
terms of the counterapplication, the orders
by Wright J be set aside,
as nullities, alternatively as orders having been erroneously sought
and/or granted in terms of Uniform
Rule 42(1)(
a
),
alternatively in terms of the common law. Insofar as the fourth order
is concerned, Mr Raicar contended that that order was erroneously
granted in the absence of Cathay Pacific.
[25]
The relief sought in the counterapplication has become moot, since
Cathay Pacific had in the meantime transported the children
back to
South Africa at its own cost and without prejudice to its rights. In
this appeal Cathay Pacific seeks the dismissal of
the contempt
application and the setting aside of the order of Wright J of 1
August 2014 as well as costs.
THE
LAW
[26]
The requirements for civil contempt of court are well established. An
applicant who seeks a committal order must establish
the following:
(a)
that a court order was made;
(b)
that the order had been served;
(c)
non-compliance with the order;
(d)
wilfulness and mala fides.
Proof
beyond reasonable doubt is required. But, once the applicant has
adduced sufficient evidence to prove requirements (a), (b)
and (c),
the respondent bears an evidentiary burden in respect of requirement
(d). A failure by the respondent to adduce evidence
that establishes
a reasonable doubt as to whether non-compliance was wilful and mala
fide, will mean that civil contempt will have
been established beyond
reasonable doubt.
[5]
[27]
In the present instance, we are concerned with an alleged
contumacious failure or refusal to obey an order of court. Committal
for civil contempt was sought in the court a quo against the
appellants for both coercive and punitive reasons: first to compel
Cathay Pacific to issue air tickets for the children’s return
from Hong Kong, and second, to punish both appellants for their
alleged contumacy. In the event, as stated, the children were flown
back to South Africa without any concession on the part of
Cathay
Pacific that it was in law compelled to do so. What remained
therefore was the committal sought by the respondents. Applying
these
general legal principles to the facts in this matter, I propose
dealing sequentially with the various orders.
THE
FIRST ORDER
[28]
It is readily evident from the facts outlined above that on 26 July
2014 Wright J was seized with a matter
of extreme
urgency. Moreover, it involved the welfare of minor children, whose
best interests are always paramount in any and every
matter.
[6]
Flight CX748 was due to leave for Hong Kong within just over half an
hour. By then the boarding gates in all likelihood had either
already
been closed or on the verge of being closed. And as indicated above
Mr Essop had been instructed only during the course
of that morning –
from the papers this instruction appears to have happened during the
late morning. During the previous
evening, as soon as the respondents
had become aware of their children’s predicament, they had
first telephonically contacted
the Departmental officials without any
success and second, they thereafter invoked the assistance of
attorneys in Sandton whose
staff were conversant in Mandarin.
Finally, on the Saturday morning of 26 July 2014, Mr Lin (the first
respondent) had sought the
assistance of an immigration agent in
Durban. The immigration agent, one Mr Hashim Malani, is the person
who then referred him
to Mr Essop, who ultimately represented the
respondents. It is evident that there simply was not sufficient time
for Mr Essop to
have prepared a notice of motion, let alone a
founding affidavit.
[29]
It is axiomatic that there are degrees of urgency. An applicant may,
in a case of sufficient urgency, create its own rules
subject only to
the court’s control and insofar as possible in accordance with
the Rules.
[7]
Uniform Rule
6(12)(
a
)
permits a court in an urgent application to dispense with the normal
forms and service and to deal with the matter ‘as to
it seems
meet’. The degree of urgency will determine to what extent a
departure from the rules will be permitted.
[8]
Where appropriate and in cases of extreme urgency, the application
may even be heard without service or notice to the Registrar.
[9]
Urgency is of course facts based. I am satisfied that the matter
before Wright J on 26 July 2014 which culminated in the first
order
was of the utmost urgency which justified hearing it over the
telephone and issuing an order telephonically.
[30]
The difficulties in respect of the first order relate to the failure
to have it reduced to writing and the failure to communicate
the
order to the relevant party, Cathay Pacific. Absent a written order
and given the extreme and urgent nature of the circumstances,
the
only manner in which the order could have been communicated, was
orally. As outlined above, the order was communicated to Mr
Mashoene,
who was not in the employ of Cathay Pacific, but of Menzies Aviation
which acted as an agent for the airline. And, while
Ms Swart had been
told by Mr Mashoene not to board the children, he crucially failed to
inform her that he was telling her this
based on a court order to
that effect. These facts were set out in some detail in Mr Raicar’s
answering affidavit and were
confirmed in confirmatory affidavits by
both Mr Mashoene and Ms Swart.
[31]
Absent a finding that these averments in the answering papers were so
palpably far-fetched or so clearly untenable that they
warrant
rejection merely on the papers, the matter had to be decided on the
common cause facts and on the appellants’ version.
This trite
principle was restated in
National
Director of Public Prosecutions v Zuma
.
[10]
Spilg J failed to apply this approach. Knowledge by Cathay Pacific of
the existence and the content of the first order was essential
before
a contempt finding could be made. However, the learned Judge had ‘no
hesitation in finding that notification of the
order to [Mr Mashoene]
was notification to Cathay Pacific and that Swart had actual
knowledge before the flight departed’.
In addition, Spilg J
found that ‘(i)t is also common cause that Swart refused to
comply with the first order. Mr Mashoene
conveyed as much on the
version given by the airline. The fact that a deliberate decision was
taken to ignore the order because
of the declaration given
effectively to Cathay Pacific by immigration officials satisfies the
requirements for wilfulness’.
These findings are against the
weight of the evidence. First, it was not common cause at all that Ms
Swart refused to comply with
the first order. In fact, on the version
advanced on behalf of the appellants, she had unequivocally conveyed
to Wright J that
she was unable to take a decision on the learned
Judge’s request, given her lack of authority. Second, notice to
Mr Mashoene
could never have constituted notice to Cathay Pacific. He
was not authorised to act for Cathay Pacific. He was a Menzies
Aviation
employee, tasked with handling baggage enquiries as an
employee of Cathay Pacific’s agent.
[32]
Spilg J relied on two aspects insofar as his findings on Mr
Mashoene’s role were concerned. Reference was firstly made
to
the fact that Mr Mashoene had later accepted service of the second
order on 19 August 2014, and had identified himself - according
to
the Sheriff’s return of service - as the ‘admin officer’.
Service was effected at the Cathay Pacific offices
at the OR Tambo
airport. The return stated that Mr Mashoene was ‘ostensibly a
responsible employee . . . of and in control
of and in direct
authority at the place of employment of Shirley Jones, addressee . .
.’. It is well established that a Sheriff’s
return of
service is prima facie proof of its contents. But in this instance
there was direct evidence to the contrary. In the
absence of an
affidavit by the sheriff, the controverting evidence could not simply
be ignored as was done by Spilg J.
[33]
Secondly, Spilg J found that, contrary to the evidence adduced in the
answering and confirmatory affidavits, ‘Menzies
Aviation . . .
does not perform only baggage clearance on behalf of Cathay Pacific’.
For this finding the learned Judge referred
to
Menzies
Aviation South Africa (Pty) Ltd v South African Airways (Pty)
Ltd
.
[11]
That case concerned the review and setting aside of a decision to
award a tender for the provision of ground handling and passenger
services for SAA flights. Paragraph 7 of the judgment by Blieden J
describes the nature of the services for which SAA had invited
tenders. Blieden J listed these as follows:
‘
Ground
handling services comprise both ramp and passenger handling services.
The former, rendered on airport aprons (where aircraft
are parked),
include push back and towing services for aircraft; providing steps
for embarking and disembarking; bussing passengers
and crew between
the airport and aircraft; loading and unloading luggage and cargo;
transporting luggage and cargo between terminals
and aircrafts;
supplying water and toilet services to aircraft; supplying ground
power to aircraft as required; manually starting
aircraft engines as
required.’
The
boarding of passengers is not one of the tasks outlined. In the
opening paragraph Blieden J describes Menzies Aviation thus:
‘
.
. . Menzies Aviation . . . is part of an international group of
companies and specializes in ground handling operations at airports.
‘
Even
if it was permissible to rely on the evidence in another case, the
passenger services relevant in the present instance are
plainly not
part of Menzies Aviation’s core business. And, as stated, it
handled baggage services and enquiries on behalf
of Cathay Pacific in
terms of an agency agreement. There is not an iota of evidence in the
papers that that agency agreement extended
to passenger services of
any kind. In the premises the reference by Spilg J to
Menzies
Aviation v SAA
was ill-conceived.
[34]
A court order should always be embodied in writing by the Registrar
of the court. The reasons for this are self-evident: it
constitutes
the recordal of what the Judge had ordered and is the official
document to be served by the Sheriff.
[12]
In addition, the order must not only be formulated carefully (since
that is what may eventually be appealed against), but must
also be
clear and easily understandable.
[13]
In the Gauteng Division of the High Court, Johannesburg (from
where this matter originates), an applicant must ensure in
instances
where an urgent application is moved outside the ordinary court
hours, that ‘the order of the court can be typed
so that it can
be signed by the presiding judge’s clerk’.
[14]
As stated, this has not happened in the present case.
[35]
In summary as far as the first order is concerned – the order
had, on the evidence before us, never come to the knowledge
of Cathay
Pacific by the time flight CX748 departed for Hong Kong. Cathay
Pacific should therefore not have been convicted of contempt
of court
in respect of the first order.
THE
SECOND ORDER
[36]
As stated, the second order was also made on Saturday 26 July 2014,
at around 15h20. With Mr Essop present in his chambers,
Wright J
engaged in the telephonic conversation with Ms Swart alluded to
above. During that conversation the learned Judge enquired
from Ms
Swart why he should not order Cathay Pacific to return the children
to South Africa. It appears that the telephone’s
speakerphone
had been activated to enable Mr Essop to follow the conversation. It
is common cause that by this time the children
were already on board
flight CX748 and in international airspace. There was no evidence
adduced at all that Cathay Pacific was
able to comply with the order.
The children had left the shores of this country and were beyond the
jurisdiction of South African
courts.
[15]
Courts cannot make orders which will have no effect, such as those to
be enforced in foreign jurisdictions.
[16]
[37]
Counsel for the respondents placed rather tentative reliance on
Metlika
Trading
.
[17]
That case is entirely distinguishable on the facts. It concerned the
return of a Falcon aircraft to South Africa from Switzerland.
This
court held that, since the respondents in that case were
incola
,
an order was competent to compel them to pursue all efforts to have
the aircraft returned to South Africa. The court held (per
Streicher
JA):
‘
.
. . if the respondent is an incola, the court may assume jurisdiction
to grant an interdict (whether mandatory or prohibitory)
in
personam
no matter if
the act in question is to be performed or restrained outside the
court’s area of jurisdiction.’
[18]
In
the present instance, Cathay Pacific is a company duly registered and
incorporated in Hong Kong, in the People’s Republic
of China.
It is a
peregrinus
and any order for it to perform an act in a
foreign jurisdiction (Hong Kong) will be of no force and effect.
[38]
For the reasons outlined above, there can be no basis to impute
wilfulness or mala fides to the appellants in circumstances
where
they were unable to comply with the second order. Moreover, and in
any event, the second order was never served on the appellants.
It
first came to their knowledge when the third order was hand delivered
to Ms Jones on 29 July 2014. As stated, the purported
service by
e-mail on Cathay Pacific was fatally defective because the e-mail
address was misspelt. Notwithstanding an acknowledgment
of this
misspelling and consequent non-delivery, Spilg J held that ‘the
content [of the second order] was known.’ This
finding is
plainly wrong on the facts outlined above. The contempt convictions
in respect of the second order are thus also unsustainable.
THE
THIRD ORDER
[39]
This order came to the appellants’ knowledge when it was
delivered to the Cathay Pacific offices by Mr Essop on 29 July
2014.
The same difficulty, alluded to above, prevailed in respect of the
third order in that the children were in Hong Kong and
no effect
could be given to an order whose reach was beyond the jurisdiction of
South African courts. It bears repetition that
the appellants were in
law incapable of giving effect to the order and also that the
third order was not competently issued
in law as it was beyond the
jurisdiction of the court a quo. The contempt convictions in respect
of the third order cannot stand.
[40]
Furthermore, there is the added problem that Ms Jones was never cited
as a party to the contempt proceedings nor in the proceedings
before
Wright J. This applies to both the second and third orders in respect
of which she had been convicted. No order can be made
against a party
who is not cited to appear.
[19]
It is of course so that any person who, with knowledge of a court
order, aids and abets the disobedience of a court order or is
wilfully party to such disobedience, can also be held in contempt,
even though such person is not cited as a party to the contempt
proceedings.
[20]
There is no
evidence of such aiding and abetting here. Ms Jones’ refusal to
sign an acknowledgment of receipt of the documents
delivered by Mr
Essop on 29 July 2014 is indeed regrettable. But it appears to have
been occasioned by a reluctance to become involved
in a contentious
matter. That reluctance also appears to have stemmed from advice by a
colleague not to sign and by some trepidation
regarding the gravity
of the matter. And at that stage, the Cathay Pacific management was
acting on the basis that they were legally
bound to adhere to the
Departmental instruction to return the children to Hong Kong.
THE
FOURTH ORDER
[41]
The first, second and third orders are, as stated, moot given the
children’s return to this country. The only issue that
remains
in respect of the fourth order is the costs order granted against
Cathay Pacific. Costs were pertinently reserved in the
third order of
28 July 2014, and that had come to the knowledge of the appellants.
It was contended on behalf of Cathay Pacific
that, since the third
order had been issued in its absence and without any knowledge by it
of the matter at that time, its non-appearance
on 1 August 2014 is
excusable. It was also contended that the third order did not call
upon the appellants to show cause on 1 August
2014 why the orders
(which were in any event in final form) relating to the return of the
children from Hong Kong, should not be
granted. In their heads of
argument appellants’ counsel did, however, make the following
telling concession: ‘The only
indication that the first
appellant should attend court, could possibly be that the question of
costs had been reserved’.
Reference was also made to the fact
that no notice of motion or affidavits had been filed or served on
Cathay Pacific.
[42]
The argument that, for the reasons outlined above, the costs order
had been erroneously granted, lacks persuasion. Cathay Pacific
is a
large international airline. When confronted on 29 July 2014 with the
third order and, having been placed on notice that (a)
there was to
be a hearing on 1 August 2014 and (b) that costs had been reserved,
it should have acted promptly and diligently to
protect its
interests. Admittedly, the costs order should perhaps have been
framed without any ambiguity, for example by pertinently
calling on
Cathay Pacific to show cause why a costs order (punitive or
otherwise) should not be made against it. But the threat
of an
adverse costs order (amongst others) nonetheless loomed large. In the
event that its senior officials and others in positions
of authority
had been uncertain about the steps to be taken in the face of a
looming potential costs order against the airline,
they should
immediately have sought legal counsel for advice and/or an appearance
on its behalf on 1 August 2014. Argument was
advanced rather
tentatively that a lay person does not know what the reservation of
costs means. But it was conceded that no one
said so under oath in
any of the affidavits for Cathay Pacific. The airline’s
non-appearance on 1 August 2014 was inexcusable
and the costs order
cannot be interfered with. There was, however, no justification for a
punitive costs order in respect of the
dismissal of the
counterapplication.
CONCLUSION
[43]
In summary – the contempt orders in respect of the first,
second and third orders as far as Cathay Pacific is concerned,
are
legally untenable and should be set aside. The same is true in
respect of Ms Jones’ conviction in respect of the second
and
third orders. The costs order of 1 August 2014 was justified in the
absence of appearance by Cathay Pacific. The punitive costs
order in
dismissing the counterapplication must be set aside.
[44]
It is necessary to repeat the well-established principles in respect
of urgent applications, service and contempt of court.
Courts are
sometimes seized with applications of the most extreme urgency. Where
the exigencies so require, a notice of motion
and founding and
supporting affidavits may be dispensed with. But the court order
which emanates from even the most urgent of applications,
must
always, without exception, be subsequently recorded in writing for
the various reasons outlined above. In the present instance
there is
no reason imaginable (and none was proffered) why the first order was
never transcribed. And it is inexplicable why the
third order of 28
July 2014 was not preceded by a notice of motion and founding
affidavit setting out the events from 25 July 2014
onwards and
motivating the need for the third order which, as stated, amplified
the second order to include the child, Xuefeng.
By 1 August 2014 it
must have been apparent to all concerned, including with respect,
Wright J, that the urgency of the matter
had abated. There appears to
have been inordinate haste in issuing the fourth order. In my view,
prudence and propriety required
that the fourth order relating to
costs should have been couched in the form of a rule nisi calling
upon Cathay Pacific to show
cause why it should not be ordered to pay
costs (punitive or otherwise).
[45]
It appears from the record that, understandably, Wright J seemed
agitated by the apparent lack of co-operation on the part
of the
Cathay Pacific employees. That agitation, again understandably,
increased as events unfolded after 26 July 2014 until 1
August 2014.
This must have been exacerbated by a belief on his part that the
e-mails had been correctly addressed and, therefore,
received. An
unhappy coincidence of events conspired to culminate in the
unfortunate outcome in this matter. The wellbeing of the
children was
implicated, time was of extreme essence to restrain the departure of
the children from this country’s shores
(and in the end time
counted against an effective order being made), the wrong e-mail
addresses were used to purportedly effect
service and, lastly, Cathay
Pacific employees were hesitant to act decisively. They were faced
with the conundrum of an instruction
from the Department on the one
hand and an oral court order on the other. An appellate court must,
of course, be slow to be overly
critical in circumstances where it
has the crucial benefit of hindsight. But, with respect, Wright J
erred in issuing orders beyond
his jurisdiction and in failing to
ensure that proper service of the orders was effected. And the
failure to record the first order
in writing, other than in the later
Reasons for Judgment, was highly irregular. The mistakes were
self-evidently made under great
pressure and in an honest attempt to
dispense justice expeditiously due to the exigencies of the case.
Abundant caution should,
however, always be exercised to act fairly
and even-handedly in dispensing justice, even in the most urgent of
cases.
[46]
Convictions for civil contempt of court are axiomatically very
serious. For this reason the standard of proof is one beyond
reasonable doubt. Equally self-evident is the fact that a party must
be cited before it can be convicted for civil contempt, unless
that
party is alleged to have aided and abetted the contumacious
disobeying of a court order. A discernible feature in the judgment
of
Spilg J is an irritation with what the learned Judge regarded as a
serious lack of co-operation and contumacy on the part of
Cathay
Pacific and Ms Jones. In finding against the appellants, the learned
Judge overlooked the various difficulties with the
first three
orders, enunciated above. And in some instances he made bald findings
against the weight of the evidence. The most
striking of these is
that, notwithstanding having acknowledged that the wrong e-mail
addresses had been utilised in purporting
to effect service on Cathay
Pacific, the learned Judge found that the contents of the first and
second order were in fact known
to Ms Swart. Regrettably, the learned
Judge failed to correctly apply the well-established principles laid
down in
Fakie
,
Tasima
and
Pheko
. Importantly,
further, the learned Judge failed to apply the proper approach to
disputes of fact where final relief was being sought.
[47]
What remains is the issue of the costs of the appeal. One of the most
unfortunate aspects of the outcome of this case is that
the party who
precipitated the flurry of events and who was plainly at fault,
namely the Department, escaped censure and is no
longer before the
court. The respondents acted in good faith and with full
justification, desperately trying to safeguard their
children’s
interests. But their opposition to and active participation in the
appeal were, in my view, ill-advised. Cathay
Pacific, on the other
hand, was fully entitled to protect its interests in the contempt
proceedings. It is a large, globally known
airline, in operation for
more than 70 years, offering passenger and cargo services to 188
destinations in 47 countries and territories.
It had every reason to
vigorously defend its reputation in the face of a civil contempt
conviction. Its employment of two counsel
was warranted in the
circumstances.
[48]
The following order is issued:
1
The appeal against the convictions of civil contempt of court is
upheld with costs, including the costs of two counsel.
2
The order granted by Spilg J on 11 November 2014, holding the
appellants in contempt of court, and the sentences imposed on 14
October 2015 is set aside and replaced with an order in the following
terms:-
‘
(a)
The application to hold the third respondent and Ms Shirley Jones in
contempt of court is dismissed.
(b)
The applicants are directed to pay the third respondent’s
costs.’
3.
The appeal against the order in the counterapplication is upheld in
part by substituting the order of Spilg J with the following
order:
‘
The
counterapplication is dismissed with costs’.
_______________________
S
A Majiedt
Judge
of Appeal
APPEARANCES
For
Appellant: R S Stockwell SC (with him S P Pincus SC)
Instructed
by: Assenmacher Attorneys, Johannesburg
Webbers,
Bloemfontein
For
Respondent: H Warner (with him A Essop)
Instructed
by: Rossouws, Leslie Incorporated, Johannesburg
Rossouws
Attorneys, Bloemfontein
[1]
Section 165(2) of the Constitution: The courts are independent and
subject only to the Constitution and the law, which they must
apply
impartially and without fear, favour or prejudice.
[2]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeeck Paints (Pty) Ltd
.
(53/84)
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
(A).
[3]
While the learned Judge referred to the ‘two younger children’
having been on board, it became common cause that
all three children
had left on flight CX748.
[4]
Master of the High Court
(North Gauteng High Court, Pretoria) v Motala NO & others
2012
(3) SA 325
(SCA) para 14.
[5]
Fakie NO v CCII Systems
(Pty) Ltd
(653/2004);
[2006] ZASCA 54
;
2006 (4) SA 326
(SCA) para 42;
Tasima
(Pty) Ltd v Department of Transport
(792/2015)
[2015] ZASCA 200
;
[2016] 1 All SA 465
(SCA) para 18;
Pheko
& others v Ekurhuleni Metropolitan Municipality
(No
2) (CCT 19/11)
[2015] ZACC 10
;
2015 (5) SA 600
(CC) para 32.
[6]
Section 28(2) of the Constitution: A child's best interests are of
paramount importance in every matter concerning the child.
[7]
Republikeinse Publikasies
(Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773
(A) at 782A-783H;
Commissioner,
South African Revenue Services v Hawker Air Services (Pty) Ltd;
Commissioner, South African Revenue Services v Hawker
Aviation
Partnership and others
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA) para 9.
[8]
Luna Meubel Vervaardigers
(Edms) Bpk v Makin & another (t/a Makin’s Furniture
Manufacturers)
1977 (4) SA
135 (W).
[9]
Republikeinse Publikasies,
fn 6 at 782E.
[10]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[11]
Menzies
Aviation South Africa (Pty) Ltd v South African Airways (Pty) Ltd &
others
[2009]
ZA GPJHC 65; 2009 JDR 1362 (GSJ) para 7.
[12]
Administrator,
Cape & another v Ntshwaqela & others
1990
(1) SA 705
(A) at 715D.
[13]
SA Eagle
Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992
(2) SA 786
(A);
Minister of
Water and Environmental Affairs v Kloof Conservancy
(106/2015)
[2015] ZASCA 177
;
[2016] 1 All SA 676
(SCA);
[2016] 1 All SA 676
(SCA) para 14;
Mazibuko NO
v Sisulu & others NNO
2013 (6) SA 249
(CC) para 24.
[14]
Practice Note 7.3 of the
Practice
Manual of the Gauteng Local Division, Johannesburg
;
since replaced by Practice Directive 02/2013.
[15]
B v S
2006
(5) SA 540
(SCA) paras 19-20;
Di
Bona v Di Bona & another
1993
(2) SA 682
(C) at 695E-F.
[16]
Foize
Africa (Pty) Ltd v Foize Beheer BV & others
2013
(3) SA 91
(SCA) para 15.
[17]
Metlika
Trading Ltd & others v Commissioner, South African Revenue
Services
2005
(3) SA 1 (SCA).
[18]
Metlika
Trading
para 49.
[19]
Lewis & Marks v Middel
1904 TS 291
at 303; cited
with approval in
Campbell v
Botha & others
[2008] ZASCA 126
;
2009
(1) SA 238
(SCA) para 16.
[20]
Pheko
,
fn 4 above, para 47.