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[2021] ZAGPJHC 495
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The Body Corporate of Preston Place v City of Johannesburg and Another (38127/17) [2021] ZAGPJHC 495 (5 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 38127/17
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
05.10.2021
In
the matter between:
THE
BODY CORPORATE OF PRESTON PLACE
Applicant
and
CITY
OF
JOHANNESBURG
First Respondent
THE
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG,
DR NDIVHONISWANI LUKHWARENI
Second Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
This opposed application for an order of
contempt came before me on 28 July 2021. The parties’
legal representatives
did not file a joint practice notice in terms
of the consolidated practice directive dated 18 September 2020.
I heard the
application but required the parties to deliver and
upload the joint practice note on caselines after the hearing.
[2]
The applicant was the Body Corporate of
Preston Place, established in terms of section 2(1) of the Sectionals
Titles Schemes Management
Act, 8 of 2011.
[3]
The first respondent was the City of
Johannesburg, a municipality established by the MEC for Local
Government and Development Planning
of Gauteng Province, in terms of
section 12(1) of the Local Government Municipal Structures Act, 1998
(‘the Act’).
[4]
The second respondent was Dr Ndivhoniswani
Lukhwareni, the Municipal Manager of the City of Johannesburg, acting
in terms of section
82 of the Act.
[5]
The applicant was a consumer of electricity
supplied by the first respondent, (‘the City’),
in
respect of which the applicant pays the City.
[6]
This application was the second by the
applicant for a finding of contempt against the first and second
respondents. The applicant
sought the following relief:
6.1
That the first and second respondents be
found in contempt of the order of Court granted on 20 March
2020.
6.2
That the first respondent pay a fine of
R1 000 000.00 (one million rand) forthwith.
6.3
That the second respondent be committed to
prison for his contempt of the order granted by this Court on
20 March 2020 by virtue
of the second respondent’s
non-compliance therewith.
6.4
Costs of suit on the attorney and own
client scale payable by the first and second respondents jointly and
severally the one paying
the other to be absolved.
[7]
This application together with the first
application for contempt arose out of a settlement agreement
concluded between the applicant
and the first respondent (‘the
agreement’) that was made an order of court on 19 March 2018
under case number 38127
/
17
(‘the court order’).
[8]
The court order stands to be read together
with the order of the Full Court granted on 20 March 2020 (‘the
Full Court
order’). The court order of 19 March 2018 was
referred to as ‘
JVA2’
in the applicant’s application.
[9]
The agreement obliged the first respondent
to provide the applicant with a full and precise statement of account
of the amounts
owed by the applicant to the first respondent, duly
supported by actual meter readings and/or proper proof thereof. and
an adjustment
of the actual account and payment of any credits and
ancillary relief.
[10]
The applicant alleged that despite the
lapse of more than two (2) years since the agreement was made an
order of court, and, notwithstanding
a plethora of correspondence
imploring the first respondent to comply with the court order, the
first respondent failed to do so
and allegedly exhibited a total
disregard for the court order.
[11]
The first and second respondents relied in
respect of the first contempt application on what was referred to as
an ‘explanatory
affidavit’. The latter document set out
the reasons that the respondents had failed to comply with the court
order.
[12]
Pursuant to the explanatory affidavit, the
court
a quo
hearing the first contempt application determined that it was
impossible for the first respondent to comply with the court order
and the first contempt application was dismissed with costs. The
applicant appealed the outcome of the first contempt application
to
the Full Court.
[13]
The Full Court order granted, on 20 March
2020, provided that:
13.1
The appeal succeeds with costs.
13.2
The order of the Court
a
quo
is set aside and replaced with the
following order:
13.2.1
The application against the first
respondent is granted with costs on an attorney/client scale.
13.2.2
The first respondent is found to be in
contempt of the Court order and is fined R500 000.00.
13.2.3
The payment of the fine is suspended on
condition that the first respondent complies with the Court order
dated 19 March 2018
in 30 days of this order.
[14]
Whilst the appeal before the Full Court was
not formally opposed by the respondents, their legal representatives
were present in
court during the appeal. They conceded that there had
not been compliance by the respondents with the court order.
Furthermore,
the respondents did not oppose the appeal or the
imposition of the fine.
[15]
The
court in
Fakie
NO v CCII Systems (Pty) Ltd
[1]
summarised the position in respect of contempt proceedings as
follows:
‘
1.
The civil contempt procedure is
a valuable and important mechanism for securing compliance
with Court
orders, and survives constitutional scrutiny in the form of a Motion
Court application adapted to constitutional requirements.
2.
The respondent in such
proceedings is not an ‘accused person’, but is
entitled
to analogous protections as are appropriate to motion proceedings.
3.
In particular, the applicant must prove the requisites of contempt
(the order;
service or notice; non-compliance; and wilfulness and
mala fides) beyond reasonable doubt.
4.
But once the applicant has proved the order, service or notice, and
non-compliance,
the respondent bears an evidential burden in relation
to wilfulness and
mala fides
: should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and
mala fide
, contempt will have
been established beyond reasonable doubt.
5.
A declarator and other appropriate remedies remain available to a
civil applicant
on proof on a balance of probabilities.’
[16]
Both wilfulness and
mala
fides
on the part of the respondents
must be established for a finding of contempt to be made. They do not
function as substitutes of
each other.
[17]
The
Full Court referred to and relied upon
Matjhabeng
Local Municipality v Eskom Holdings Limited & Others
.
[2]
In terms thereof, the applicable onus of proof must accord with the
purpose sought to be achieved by the relief claimed in the
contempt
proceedings.
[18]
On 20 March 2020, the applicant’s
attorney of record transmitted a copy of the judgment of the Full
Court to the respondents’
attorneys of record and advised that
the applicant required strict compliance with the order of 19 March
2018 within 30 days
thereof, failing which the first respondent was
to pay the fine of R500 000.00 (five hundred thousand rand)
imposed on the
first respondent.
[19]
The respondents’ attorneys
replied on 23 March 2020, that the judgment had been transmitted to
the first respondent, (the
applicant presumed the latter reference to
the first respondent was a typographical error that ought to read
‘the second
respondent’), for urgent compliance with the
Full Court order.
[20]
On 23 March 2020, the applicant’s
attorney received a telephone call from an employee, one Mr Clifford
Komana of City
Power (Pty) Ltd, Legal Department, requesting the name
and contact details of the person with whom contact could be made in
order
for a City Power technician to read the meter, which the
applicant’s attorney duly furnished, nothing further occurred.
[21]
The agreement was made a court order more
than two years ago. The Full Court delivered its judgment and order
some 18 months ago.
The respondents failed to comply therewith.
Accordingly, the applicant launched this second application for
contempt.
[22]
The answering affidavit in the second
contempt application was delivered on behalf of both the first and
second respondents. The
respondents raised two issues; the absence of
proper service on the second respondent, and, non-compliance with the
Full Court
order by the respondents.
[23]
I was informed at the hearing that the
second respondent terminated his employment with the first respondent
in the intervening
period and was not employed by the first
respondent any longer.
[24]
The respondents contended that personal
service of the Full Court order was required in that the second
respondent’s liberty
was at risk pursuant to the alleged
contempt.
[25]
The second issue raised by the respondents
was that it was impossible for the respondents to comply with the
agreement and court
order read together with the order of the Full
Court.
[26]
The respondents relied upon the
‘explanatory affidavit’ that was placed before the court
a quo
and
pursuant to which the Full Court determined that the first respondent
was well able to comply with the court order incorporating
the
agreement. Thus, the Full Court granted the order aforementioned.
Notwithstanding, the respondents continued to rely on the
explanatory
affidavit in the second contempt application.
[27]
The respondents alleged that the last
actual reading of the meter at the applicant’s premises was on
31 July 2017. The
applicant’s meter box was numbered
63034153, being the meter box belonging to Marabella Complex and not
to the applicant.
Subsequently, the applicant’s electricity
consumption had been estimated.
[28]
The first respondent alleged that it was
unable to ascertain when meter 63034153 was installed at the
applicant’s premises.
Accordingly, the first respondent alleged
that it could not be found to be in wilful disregard of the Full
Court’s order.
[29]
However, the respondents alleged that:
‘
The
facts surrounding the installation of meters at the applicant’s
property will have to be done to ensure compliance with
the
settlement agreement.’
[30]
The deponent on behalf of the first
respondent failed to articulate why the first respondent’s
officials and employees had
not undertaken and completed that
investigation in the interim.
[31]
Other than the single telephone call made
to the applicant’s attorney and the deponent’s inspection
of the applicant’s
premises, nothing had been done by the first
respondent to comply with the court order read together with the Full
Court order.
[32]
The statements annexed by the respondents
to the answering affidavit reflected that the meter calculating the
electricity usage
at the applicant’s premises from 15 July
2017 to 19 April 2018 was meter number 63054623. The meter
calculating
the consumption from 13 September 2019 was meter
number 63034153. The respondent alleged that meter number 63034153
was installed
at Mabella Complex and the respondents could not
explain how the meter was installed at the applicant’s
property.
[33]
The City could not explain when the meter
was installed and nor did it explain why it could not do so, or, what
steps it had taken
in order to ascertain the circumstances under
which meter number 63034153 was installed at the applicant’s
premises.
[34]
Not a single averment was made on behalf of
the City as to what transpired, if anything at all, in the interim in
compliance or
attempted compliance with the Full Court order.
[35]
The City simply stated that it was
impossible to comply with the agreement.
[36]
Accordingly, the respondents failed to
comply with the settlement agreement, court order and the order of
the Full Court (‘the
court orders’).
[37]
Objectively considered, the respondents did
not provide an exculpatory version for their non-compliance.
[38]
On the undisputed or common cause
facts in respect of the respondents’ non-compliance with the
provisions of the court orders,
the evidentiary burden resting on the
respondents in terms of the
Faki
e
judgment was not complied with by them.
[39]
Thus, the respondents failed to advance
evidence that established a reasonable doubt that their
non-compliance with the court orders
was wilful and
mala
fide
.
[40]
Absent compliance with the court order,
unless a respondent is able to establish conduct that is not wilful
and
mala fide
,
that respondent is in contempt of the court order and obliged to
suffer the consequences.
[41]
Wilfulness and
mala
fides
are legal conclusions that flow
from the facts established on the papers. In the absence of any facts
or admissible evidence from
which facts can be adduced, advanced by
the respondent, there is no basis whatsoever to find anything other
than that the respondents
failed to meet the duty resting upon them
to advance evidence that negated the elements of wilfulness and
mala
fides
.
[42]
The respondents’ conduct, objectively
assessed, demonstrated in my view wilful and
mala
fide
non-compliance. The finding of
wilfulness and
mala fides
against
the respondents is justified, this being the only inference
established by the respondents’ conduct.
[43]
The applicant proved the court orders and
service thereof on the City. Personal service, a requirement for
incarceration, was not
proved by the applicant on the second
respondent beyond a reasonable doubt. Accordingly, the application
against the second respondent
stands to be dismissed. In so far as
the service alone was an issue in respect of the case against the
second respondent, the costs
will not be affected by the dismissal.
[44]
The
Constitutional Court emphasised in
Secretary
of the Judicial Commission of Enquiry into Allegations of State
Capture v Zuma and Others,
[3]
that:
‘
[27]
Contempt of Court proceedings exist to protect the rule of law and
the authority of the Judiciary as the applicant correctly
avers, “the
authority of Courts and obedience of their orders – the very
foundation of a constitutional order founded
on the rule of law –
depends on public trust and respect for the Courts”. Any
disregard for this Court’s order
and the judicial process
requires this Court to intervene. As enunciated in
Victoria
Park Ratepayers’ Association,
“contempt
jurisdiction, whatever the situation may have been before 27 April
1994, now also involves the vindication
of the Constitution”.
Thus, the issues at the heart of this matter are irrefutably
constitutional issues that engage this
Court’s jurisdiction.’
and
‘
[60]
As this Court held in
Tasima 1
,
“the obligation to obey court orders has at its heart the very
effectiveness and legitimacy of the judicial system …
and is
the stanchion around which a State founded on the supremacy of the
Constitution and the rule of law is built”. It
is perspicuous
that the constitutional right of access to courts will be rendered an
illusion unless orders made by Court who are
capable of being
enforced by those in whose favour the orders were made. In
SALC
,
it was said that “if the State, an organ of State or State
official does not abide by court orders, the democratic edifice
will
crumble stone by stone until it collapses and chaos ensues”. A
complete denial of judicial mechanisms “would render
meaningless the whole process of taking disputes to courts for
adjudication and that is a recipe for chaos and disaster”.
Accordingly, it is necessary for this Court to send, by virtue of a
punitive sanction, an unequivocal message that its orders must
be
obeyed.’
[45]
In the circumstances, the first respondent
is in contempt of the Full Court order delivered on 20 March 2020
under case number 38127/17
and I intend to
grant an order accordingly.
[46]
The Full Court considered the
appropriateness of a fine of R500 000.00 against the City. Given
the Full Court’s approval
thereof, I intend to follow that
course of sanction.
[47]
By reason of the aforementioned:
47.1
The first respondent is declared to be in
contempt of the order of the Full Court delivered on 20 March 2020
under case number 38127/17.
47.2
The first respondent is ordered to pay a
fine of R500 000.00 (five hundred thousand rand) forthwith.
47.3
The application against the second
respondent is dismissed.
47.4
The first respondent is liable for the
costs of the application on the attorney and own client scale.
A
A CRUTCHFIELD SC
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be 5 October 2021.
COUNSEL
FOR THE APPLICANT:
Mr C D Roux.
INSTRUCTED
BY:
Arnold Joseph Attorney.
COUNSEL
FOR RESPONDENTS: Mr
Nyangiwwe.
INSTRUCTED
BY: Kunene Ramapala Inc.
DATE
OF THE HEARING: 28 July 2021.
DATE
OF JUDGMENT: 5 October 2021.
[1]
Fakie
NO v CCII Systems (Pty) Ltd
2006
(4) SA 325
(SCA) (‘
Fakie
’)
para 42.
[2]
Matjhabeng
Local Municipality v Eskom Holdings Limited & Others
2018
(1) SA 1
(CC) (‘
Matjhabeng’
).
[3]
Secretary
of the Judicial Commission of Enquiry into Allegations of State
Capture v Zuma and Others
CCT
52/21 dated 29 June 2021.